Bond v. Golden

• Decision Date: 30 November 1959
• Docket Number: No. 6116.,6116.
• Citation: 273 F.2d 265
• Parties: William T. BOND, Appellant, v. Charles Mills GOLDEN, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

273 F.2d 265 (1959)

William T. BOND, Appellant, v. Charles Mills GOLDEN, Appellee.

No. 6116.

United States Court of Appeals Tenth Circuit.

November 30, 1959.

Robert J. Roth, Wichita, Kan. (R. C. Russell, Isabel Obee, Don C. Foss, Great Bend, Kan., A. W. Hershberger, Richard Jones, Wm. P. Thompson, H. E. Jones and Jerome E. Jones, Wichita, Kan., on the brief), for appellant.

Lawrence Weigand, Wichita, Kan. (Lawrence E. Curfman, Byron Brainerd, Charles W. Harris, Orval J. Kaufman, J. Ruse McCarthy, Donald A. Bell and Charles C. McCarter, Wichita, Kan., on the brief), for appellee.

Before BRATTON, LEWIS and BREITENSTEIN, Circuit Judges.

LEWIS, Circuit Judge.

Plaintiff-appellant urges error in the dismissal with prejudice of his complaint filed, after removal, in the United States District Court for the District of Kansas. Although the order of dismissal does not designate specific grounds therefor it is apparent that the trial court premised the dismissal upon a holding that plaintiff had failed to obtain proper service of process upon defendant and that such failure had resulted in barring plaintiff's claim pursuant to the applicable Kansas statute of limitations. This appeal requires consideration of two questions of law, each governed by the statutory law of Kansas as aided by judicial expression in that state: 1. Did the plaintiff substantially comply with the Kansas "long-arm" statutes relating to service of process upon a nonresident motorist?¹ 2. Does the absence of a nonresident motorist from the state toll the running of the statute of limitations?²

Plaintiff is a resident of Kansas, defendant of the state of New York. On July 17, 1958, plaintiff filed a complaint in the District Court of Barton County, Kansas, setting forth a claim for damages arising from an automobile accident which occurred on July 18, 1956, in that county and state. The Kansas court, after determination that the complaint alleged facts showing the proper application of the "long-arm" statute, entered an order on July 17, 1958 that "service of process be made on the defendant as provided in section 8-401, General Statutes of Kansas, 1949; that a copy of the process herein, of plaintiff's petition, of this order, and a notice that the same have been served upon the Secretary of State, pursuant to said Section 8-401, General Statutes of Kansas, 1949, and Section 8-402, 1957 Supplement to General Statutes of Kansas, 1949, be delivered to said defendant by registered mail or personally to said defendant by a Sheriff or Deputy Sheriff in the State of said defendant's residence."

Summons was issued July 17, placed in the hands of the sheriff on July 19 and served by him on the Secretary of State on July 21. On July 17 counsel for plaintiff mailed to the defendant a letter in notice form thus:

"July 17, 1958

"Mr. Charles Mills Golden, 59 Fort Sperry Road, Cohoes, New York.

"Re: Bond v. Golden, Barton County, Kansas, District Court No. 19,785.

"Dear Sir: You are hereby notified that suit against you has been filed as shown by the caption hereof. Enclosed herewith please find the following to-wit:

"Copy of plaintiff\'s petition.

"Order of the District Court of Barton County, Kansas issued this date.

"Copy of Summons served upon the Secretary of State, State of Kansas, which said summons was forwarded to the Secretary of State this date.

"Yours very truly "Russell, Obee & Foss "By "f/m "Registered Mail "Return Receipt Requested" The letter was received by defendant on July 22 and, at his instance, the action was removed to the United States District Court where on August 21 a motion to dismiss was filed questioning the sufficiency of service of process. On November 5, and while the motion to dismiss was pending, a second letter-notice was mailed to and received by defendant which admittedly meets the statutory requirements set forth in 1957 Kan.G.S. Supp. 8-402. Proof of this service was made on November 6. On this date, too, an affidavit was filed in regard to the July 17 letter and its enclosures. This affidavit does not purport to be made "by the person making said service" (1957, Kan.G.S.Supp. 8-402) and the affiant merely states that the files of plaintiff's counsel indicate that the July 17 letter and enclosures were sent to defendant.

In Kansas, as in many other states, the rule that statutes in derogation of the common law should be strictly construed has been made inapplicable by legislative enactment. 1949 Kan.G.S. 77-109; 1949 Kan.G.S. 60-102. But regardless of whether a statute is liberally or strictly construed substantial compliance with its requirements is essential before the benefits of the statute become available. Nor is it any answer to the fact of non-compliance with statutory requisites to assert that the general purposes of the statute have been met by means extraneous to the particulars of the statute. Service by substitution upon a fictional agent — here, the Secretary of State — cannot meet the demands of due process unless such service is complemented by notice to the defendant of the service. Goldey v. Morning News of New Haven, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517. The notice sent July 17 does not and cannot comply with this essential of the statute for service upon the Secretary of State was not had until July 21. The statute states, and the state court order required, that notice be sent that process and pleadings "have been served upon the secretary of state." These statutory words clearly set out the necessity of notice of an accomplished fact and do not call for the application of a rule of statutory construction. Where notice of an accomplished fact is required it is impossible to give such notice before the actual occurrence that brings into existence the fact. An attempt to so do is patently futile and a fatal non-compliance with the statute. Bucholz v. Hutton, D.C.Mont., 153 F. Supp. 62. State ex rel. Stevens v. Grimm, 192 Wis. 601, 213 N.W. 475. And although plaintiff points out that on July 22, the date the purported notice was received by defendant, process had been served on the Secretary of State this coincidence does not aid him. It is compliance with the statute, not receipt of the summons and complaint by the defendant, that attaches jurisdiction. State ex rel. Stevens v. Grimm, supra.

The second defect in plaintiff's effort to obtain "long-arm" service upon defendant lies in simple failure to make any attempt to make proof of service until the issue of faulty service was before the court and then to fail to observe the statutory mandate in such regard. Since the statute does not designate when the proof should be made a liberal construction of the enactment might grant great leeway in the matter of time. But the statute is clear that such proof "shall" be made and "by the person making said service." This has not been done.

The ruling of the trial court was, as we have pointed out, that the action should be dismissed with prejudice. Ordinarily an action which fails for lack of process, since the merits are not reached, is not so dismissed. However such dismissal would be proper if lack of process made it apparent from the pleadings that the claim was then barred by limitation.

This action was filed in state court one day before the applicable statute of limitations...