Bucholz v. Hutton

• Decision Date: 08 July 1957
• Docket Number: Civ. A. No. 1899.
• Citation: 153 F. Supp. 62
• Parties: Mildred P. BUCHOLZ, Plaintiff, v. Perry HUTTON, Defendant.
• Court: U.S. District Court — District of Montana

153 F. Supp. 62

Mildred P. BUCHOLZ, Plaintiff, v. Perry HUTTON, Defendant.

Civ. A. No. 1899.

United States District Court D. Montana, Havre Division.

July 8, 1957.

Richard V. Bottomly, Great Falls, Mont., for plaintiff.

Leonard H. Langen, Glasgow, Mont., for defendant.

JAMESON, District Judge.

Defendant has filed a motion to set aside the service of summons and dismiss the action, on the ground that the defendant has not been properly served with process in the manner required by Sections 53-201 to 53-206, Revised Codes of Montana, 1947, providing for service on non-resident owners and operators of motor vehicles. In particular, defendant claims a failure to comply with the proviso in Section 53-204, which reads:

"Service of process, how made — fees. Service of such summons or process under sections 53-202 and 53-203 shall be made by leaving a copy thereof with a fee of two dollars ($2.00) with the secretary of state of the state of Montana, or in his office, and such service shall be sufficient and valid personal service upon the defendant.

"Provided, that notice of such service and a copy of the summons or process is forthwith sent by registered mail requiring personal delivery, by the plaintiff to the defendant and the defendant's return receipt and plaintiff's affidavit of compliance herewith are appended to the process and entered as a part of the return thereof."

The action was instituted by plaintiff in the District Court of Valley County, Montana, and removed by defendant to this court by reason of diversity of citizenship. Substituted service of summons was made upon the Secretary of State of the State of Montana on November 21, 1956. On November 20, 1956, plaintiff's attorney sent from Great Falls, Montana, by registered mail, with return receipt requested, a notice directed to the defendant at 6402-120th Avenue, Edmonton, Alberta, Canada, reading as follows:

"Notice To the Above Named Defendant, Perry Hutton:

"You are hereby notified that pursuant to the Laws of the State of Montana, in such cases made and provided, service of summons in the above entitled action is made upon you by service of copy of the summons, issued, together with a copy of the complaint and notice on file herein, on the Honorable S. C. Arnold, Secretary of State, of the State of Montana.

"A copy of the summons and complaint, and notice are attached hereto."

The return receipt therefor, signed on November 22, 1956, reads as follows:

"The undersigned declares that the article described on the other side was duly delivered on Nov 22, 1956.

Signature Postmark of of the of the agent of the office the office Addressee: of destination of destination. P. Hutton E. J. Cutt E. H. Manning

This receipt must be signed by the addressee, or, if the regulations of the country of destination so provide, by the agent of the office of destination, and returned by the first mail direct to the sender."

Return of summons showing service on the Secretary of State was filed in the District Court of Valley County, Montana, on November 28, 1956, together with affidavit of the Secretary of State reciting that on November 21, 1956, he mailed a copy of the summons and complaint to the defendant at the address given above.

On December 7, 1956, a transcript of the proceedings in the state court was filed in this court. On December 5th, plaintiff's attorney mailed to the clerk of the state court a copy of the notice to the defendant, the return receipt referred to above, and the attorney's affidavit of compliance. By stipulation, these instruments have been filed in this court.

The foregoing is undisputed and is supported by the record. In further support of his motion, defendant has filed affidavits of Joyce Hutton, wife of the defendant, and Emanual H. Manning, from which it appears that the defendant is a member of the Royal Canadian Air Force; that defendant and his wife lived in a basement apartment of a dwelling house at 6402-120th Avenue, Edmonton, Alberta, owned by Manning and his wife; that on November 20, 1956, defendant departed permanently from said address, having been transferred by the Royal Canadian Air Force to a post outside of Canada; that defendant's wife continued to reside in said apartment until November 24, 1956, when she moved to Calgary; that on November 22, 1956, a registered letter from the law office of plaintiff's attorney, addressed to the defendant, was delivered to Emanual H. Manning by a representative of the post office department and that Manning signed a receipt therefor; that Joyce Hutton, upon returning to her apartment, found this letter on the table and opened it. Both Joyce Hutton and Emanual H. Manning state in their affidavits that Manning had no authority to receive mail on behalf of the defendant or to sign defendant's name on any receipt in connection with the delivery of registered mail addressed to the defendant. The envelope containing the notice is attached to these affidavits as an exhibit and, in addition to the address and return address of the sender, contains the notations "Please Forward", "Registered Mail" and "Return Receipt Requested."

The affidavits of Joyce Hutton and Manning are sworn to before a notary public. Counsel for plaintiff contend that these affidavits should be stricken from the files, on the ground that they do not conform to the provisions of Section 93-1701-6, Revised Codes of Montana, 1947, providing that affidavits taken in a foreign country may be taken before "an ambassador, minister, consul, viceconsul or consulor agent of the United States, or before any judge of a court of record having a seal in such foreign country."

The motion is also supported by an affidavit of Leonard H. Langen, attorney for the defendant, which recites among other things that he conducted an investigation by telephone and that such investigation revealed that the envelope containing the notice and copy of the summons and complaint was delivered to Mr. or Mrs. Emanual Manning, who receipted therefor on November 22, 1956; that on said date the defendant did not reside at the address specified on the envelope or in Edmonton, and that prior to November 22, 1956, he had been transferred to a post outside of Canada.

The affidavit of compliance of plaintiff's attorney recites in part:

"That on the 10th day of November, 1956, affiant sent by registered mail, to addressee only, a notice to defendant that service of summons in the above entitled action was made upon the Secretary of the State of Montana, together with a copy of the summons and complaint in said action, the envelope in which such notice and copies of summons and complaint were contained was addressed to the defendant as follows: Perry Hutton, 6402-120 Avenue, Edmonton, Alberta, Canada, as is evidenced by the return receipt hereto attached and made a part hereof."

It is obvious that the reference to the 10th day of November was a typographical error and that the notice and copy of summons and complaint were actually mailed on the 20th day of November. While the affidavit recites that these instruments were sent "by registered mail, to addressee only", the envelope, as noted above, contains the notations "Please Forward", "Registered Mail" and "Return Receipt Requested", and does not contain any stamped notation reading "To be Delivered to Addressee Only", or other legend requiring personal delivery to the addressee.

Aside from the affidavit of compliance, no affidavits have been filed by plaintiff to controvert defendant's affidavits. Plaintiff relies upon a series of presumptions, — that official duty has been regularly performed, that a letter duly directed and mailed was received in the regular course of mail, the identity of persons and names, and that accordingly defendant was personally served and signed a receipt which was returned, or that notice was received by his agent, and that defendant or his agent opened the envelope.

Defendant questions the sufficiency of the service on three counts: (1) plaintiff's notice of service of summons on the Secretary of State was mailed the day before service was actually made, and accordingly was not notice of an existing fact; (2) the notice arrived at the address to which it was addressed after defendant had departed therefrom and defendant did not sign a receipt for the notice; and (3) the return of service of summons on the Secretary of State did not have appended thereto as a part of the return plaintiff's affidavit of compliance.

No question is raised as to the validity of the statute in question, which has been upheld by the Supreme Court of Montana. State ex rel. Charette v. District Court, 107 Mont. 489, 86 P.2d 750; State ex rel. Thompson v. District Court, 108 Mont. 362, 91 P.2d 422, and State ex rel. Gallagher v. District Court, 112 Mont. 253, 114 P.2d 1047. Under the Montana law the provisions of the Act and proceedings thereunder must be "liberally construed with a view to effect their objects and to promote justice." Section 12-202, R.C.M.1947, State ex rel. Gallagher v. District Court, supra. Even though the statutes and proceedings should be liberally construed there must be a compliance with the plain mandates of the statute. Moreover, the Montana Supreme Court has said that "it is the settled judicial policy of this state that more accurate observance, with regard to compliance with provisions of the statutes, is required in constructive service than in personal service * * *." Holt v. Sather, 81 Mont. 442, 264 P. 108, 111.

The Federal Rules of Civil Procedure, 28 U.S.C.A., specifically provide that motions may be supported by affidavits (Rules 6(d) and 43(e) and authorize opposing affidavits. No affidavits have been filed in opposition to the recitals in the affidavits referred to above. Where affidavits in support of motions of this nature are not controverted, they are deemed admitted for the purpose of the motion. Rohlfing v. Cat's Paw Rubber...