Cheek v. Norton, 39523

• Decision Date: 10 July 1962
• Docket Number: No. 3,No. 39523,39523,3
• Citation: 126 S.E.2d 816,106 Ga.App. 280
• Parties: W. P. CHEEK v. Eva M. NORTON, Next Friend
• Court: Georgia Court of Appeals

Page 816

126 S.E.2d 816

106 Ga.App. 280

W. P. CHEEK v. Eva M. NORTON, Next Friend.

No. 39523.

Court of Appeals of Georgia, Division No. 3.

July 10, 1962.

Syllabus by the Court

In actions against nonresident motorists the plaintiff or the Secretary of State after service upon the latter must mail the defendant by registered mail a copy of process, and this fact must be shown by the plaintiff's affidavit of compliance. Where the defendant's address is unknown and cannot be ascertained there is no compliance with the statute, and the courts of this State cannot obtain jurisdiction to render a judgment in personam against such nonresident defendant.

Fred Norton, a minor, brought by next friend, an action for damages for personal injuries against W. P. Cheek in the Superior Court of Chatham County under the Nonresident Motorist Act, alleging in the petition that 'defendant's mailing address is unknown to petitioner' and also that the defendant 'is not now a resident of the State of Georgia, his present place of domicile and residence being in Pennington County, Sough Dakota.' The petition and process were served upon the Secretary of State of Georgia with second original, copy and process attached, and the plaintiff made affidavit of such fact, stating also that defendant's mailing address was still unknown. No effort was made to mail any notice of this service on the Secretary of State or a copy of the petition or process to the nonresident defendant. Apparently no efforts were made either by the Secretary of State or the plaintiff to ascertain the address of the defendant, nor did they attempt to ascertain if 'Pennington County, South Dakota' was in itself an address. The defendant thereafter made a special appearance and moved to dismiss the petition for lack of service, which motion was overruled, and this judgment was assigned as error.

Bouhan, Lawrence, Williams, Levy & McAlpin, Kirk M. McAlpin, E. Pomeroy Williams, Frank W. Seiler, Savannah, for plaintiff in error.

Pierce, Ranitz & Lee, John F. M. Ranitz, Jr., Jack K. Berry, Joseph O. Saseen, Savannah, for defendant in error.

RUSSELL, Judge.

1. It is no longer open to question that States have the right, by resorting to the legal fiction that nonresidents using their highways impliedly consent to the appointment, to declare by statute under the general police power that some state officer shall be the agent of the nonresident for service upon him in actions arising out of his use of their highways. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, and see Pawloski v. Hess, 250 Mass. 22, 144 N.E. 760, 35 A.L.R. 945. All fifty States now have such provisions incorporated in their nonresident motorist statutes to this effect, the main differences between them being the State officer named as the agent of service, the method provided for giving notice of service to the defendant, and the method provided for proof by the plaintiff or State officer that such service and notice of service have been made. In New Mexico, for example, the notice of service on the Secretary of State must be personal. At least thirteen other States allow personal service of notice as an alternative method. All States except New Mexico permit or require service by mail, and all but five of these require registered or certified mail. In most cases either the plaintiff or State officer must attach the return receipt or make an affidavit of compliance. In ten of these the statutes provide for the notice to be mailed to the defendant at his 'last known address.' No state except Georgia contains the provision of our Code Ann. § 68-802, which is that notice of service and copy of process be sent by registered mail to the defendant 'if his address be known,' which is the issuable phrase involved in this action, the plaintiff here contending in effect that while he knows the defendant is a resident of Pennington County, South Dakota, he does not know his 'address,' by which he means a mailing address at which a registered letter would be likely to reach him, and he at least impliedly contends that under the terms of the Georgia statute there is no burden upon him to ascertain such an address for the purpose of forwarding the notice of service.

Concededly, our question is not constitutionality but compliance; yet it becomes necessary to construe Code Ann. § 68-802 in the light of constitutional due process requirements in order to reach a decision as to whether it will permit a plaintiff to prosecute an action against a defendant under the nonresident motorist law and obtain a judgment entitled to full faith and credit among the other States by means of which he can levy upon and seize the defendant's property, without giving the defendant any notice of the pendency of the action, by the device of an allegation in the petition that the defendant's address is unknown to him.

The statute is in derogation of the common law, and must be strictly construed and fully complied with before a court of a state other than that of the defendant's residence may obtain jurisdiction of his person. Stone v. Sinkfield, 70 Ga.App. 787, 789, 29 S.E.2d 310. In Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R. 1230, a New Jersey statute was struck down where it failed to provide for actual notice of service to the defendant because 'the enforced acceptance of the service of process on a state officer by the defendant would not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to advise him, by some written communication, so as to make it reasonably probable that he will receive actual notice.' In reaching this decision the United States Supreme Court cited, among other cases, Jefferson Fire Ins. Co. v. Brackin, 140 Ga. 637, 79 S.E. 467, wherein it was held: 'One of the essential elements of 'due process of law,' to which everyone is entitled before he can be lawfully deprived of his property, is notice of the procedure against him. This notice must not be dependent upon chance, and must at least be such as with reasonable probability will apprise him of the pendency of the proceeding.' See cases listed in 99 A.L.R. (Anno.) 130. Statutes must provide for notice and hearing as a matter of right, either in express terms or by necessary implication. Robitzsch v. State of Georgia, 189 Ga. 637, 7 S.E.2d 387; Sikes v. Pierce, 212 Ga. 567, 94 S.E.2d 427. 'Where * * * a party is being divested of property rights by a proceeding instituted by the opposite party to the cause, nothing short of notice of the proceeding and an opportunity to be heard in opposition thereto will satisfy the due-process clauses of the Constitutions of this State and of the United States * * *. This ought to be and is elementary.' Murphy v. Murphy, 214 Ga. 602, 605(2), 106 S.E.2d 280, 283.

As to service on nonresidents, the 'reasonable probability' rule seems to have been universally adopted, although the strictness with which it is enforced may vary. Jurisdiction rests upon the assumption that, in the absence of a contrary assertion by the defendant, he received notice of the action and an opportunity to defend. Tennant v. Farm Bureau Mut. Auto Ins. Co., 286 App.Div. 117, 141 N.Y.S.2d 449. There must be at least an attempt by the plaintiff to give the defendant notice of service in the manner set forth in the statute. King v. Menz (N.D.) 75 N.W.2d 516. Mere mailing to the defendant in a large city, no street address being given, raises no presumption of reasonable certainty that the defendant received the notice, and the court would not obtain any jurisdiction thereby to render a personal judgment. Odley v. Wilson, 309 Ky. 507, 218 S.W.2d 17. In Plumley v. May, 140 W.Va. 889, 87 S.E.2d 282 it was held...