Chesin v. Superior Court of Cal. In and For Los AngelesCounty
| Decision Date | 18 June 1956 |
| Citation | 142 Cal.App.2d 360,298 P.2d 593 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Norman CHESIN, Petitioner, v. The SUPERIOR COURT OF The State of CALIFORNIA, IN AND FOR the COUNTY OF LOS ANGELES, Respondent, Margie Logan, Zetta Wright, James Wright, S. E. Wright, Jr., S. E. Wright, Sr., Mildred Johnson, Effie May Bell, Myrtle Little, Chester Wright, Eugene Wright and Margie Logan, as Guardian ad litem of Opal Wright and Roscoe Wright, Minors, Real Parties in Interest. Civ. 21801. |
Hunter & Liljestrom, C. R. Liljestrom, Los Angeles, for petitioner.
Harold W. Kennedy, County Counsel, Los Angeles, David Mix, Deputy County Counsel, Granda Hills, Thomas H. Carver, Deputy County Counsel, Los Angeles, for respondent.
William B. Rodiger, Los Angeles, for real parties in interest.
By his original petition filed herein, petitioner sought a writ of prohibition to prevent the respondent court from taking any further proceedings in an action for wrongful death in which petitioner is the defendant. By amendment to his petition he seeks in the alternative a writ of mandate to compel the superior court to quash the service upon him of the summons in the subject action, the service of that summons having been made upon him in the state of Arizona. Petitioner's remedy, if any, is a writ of mandate, Code Civ.Proc., sec. 416.3 as enacted in 1955.
The relevant facts, as established by the record before us, are: In March, 1954, petitioner was a resident of and domiciled in the county of Los Angeles, state of California. On the 22nd of March of that year, while driving an automobile owned by him and registered in this state in his name on a public highway in said county, he was involved in an accident in which one Zetta Wright sustained injuries which resulted in her death. On or about the 15th of September, 1954, petitioner became a resident of and domiciled in the city of Tucson, state of Arizona, and has at all times since been a resident of and domiciled in Arizona. On the 21st of March, 1955, the heirs of Zetta Wright (real parties in interest here) commenced the subject action against petitioner. By their complaint in that action they alleged the occurrence of the accident on March 22, 1954, and alleged that that accident and the death of Zetta Wright were proximately caused by the negligence of petitioner herein. The summons in this action was served upon petitioner on March 16, 1956, in the city of Tucson, state of Arizona.
The sole question presented for determination here is: Did respondent court obtain jurisdiction of the person of petitioner by the service upon him in Arizona of the summons and complaint in the subject action?
The answer to this question depends upon the interpretation to be placed upon sections 412, 413, 416, and 417 of the Code of Civil Procedure, and sections 404.1, 404.2, and 404.3 of the Vehicle Code of this state.
Section 412 of the Code of Civil Procedure provides, so far as relevant here, that where a person on whom service is to be made resides out of the state, that service may be made upon him by the publication of the summons. Section 413 provides that where the residence of a nonresident is known, the court must direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to him at his place of residence, and that personal service outside of the state is equivalent to publication and deposit in the post office. Section 416 provides that from the time of service the court is deemed to have acquired jurisdiction of the person of the party served. 1
Prior to 1940 it had been uniformly held that the courts of this state could not acquire jurisdiction of the person of a defendant by the service of summons by publication, or by actual service upon him outside of the state of California, Frey & Horgan Corp. v. Superior Court, 5 Cal.2d 401, 55 P.2d 203; De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82; Merchants' Nat. Union v. Buisseret, 15 Cal.App. 444, 115 P. 58; Pinon v. Pollard, 69 Cal.App.2d 129, 158 P.2d 254. 2 These decisions were founded upon the decision of the Supreme Court of the United States in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.
In 1940 the Supreme Court of the United States handed down its decision in Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278. In this decision the court limited the application of the rule laid down in Pennoyer v. Neff, and in applying a statute of the state of Wyoming similar in effect to sections 412 and 413 of the Code of Civil Procedure of this state, held that the courts of Wyoming obtained jurisdiction to render a personal judgment against the defendant, who was domiciled in Wyoming at the time the action against him was commenced, but who was a resident of Colorado when served with process in that state.
While in Milliken v. Meyer, Meyer was a domiciliary of Wyoming at the time of the commencement of the action, the language used by the Supreme Court of the United States was so broad that it might be interpreted as applying to a case where the defendant was domiciled in the state where the action was commenced at the time the cause of action arose, although he was not so domiciled at the time of the commencement of the action.
In order to clarify and make definite the rule in California, and to make it clear that residence in the state at the time the cause of action arose did not make a resident of the state subject to service of process outside the state in an action commenced after he left the state even though California was the state of his domicile, the State Bar of California sponsored, 3 and in 1951 the Legislature enacted, section 417, Code of Civil Procedure. This section in substance provides that a court of this state shall only have power to render a personal judgment against a person served by publication in accordance with sections 412 and 413, Code of Civil Procedure, if he is personally served with a copy of the summons and complaint, and 'was a resident of this State at the time of the commencement of the action or at the time of service.' [Emphasis added.] This was the state of the law at the time petitioner ceased to be a resident or domiciliary of this state, and this was the law at the time of the commencement of the subject action.
In 1935 the Legislature enacted section 404 of the Vehicle Code of this state, which provides for substituted service upon a nonresident of the state against whom a cause of action has arisen by reason of his operation of a motor vehicle upon the highways of this state.
After the enactment of section 417, Code of Civil Procedure, it became apparent that a resident of this state who left the state after a cause of action had arisen against him because of his negligent operation of an automobile upon the highways of the state, but before any action was commenced against him, was in a more advantageous position than a nonresident, inasmuch as he was not, but a nonresident driver was, subject to service of process outside the state. To remedy this situation, the State Bar sponsored, and the Legislature in 1955 enacted, sections 404.1 through 404.4, both inclusive, of the Vehicle Code. 4
It is upon the basis of the provisions of sections 404.1 and 404.2, Vehicle Code, that respondent and the real parties in interest respondent here, contend that the service upon petitioner in Arizona of the summons and complaint in the subject action gave the respondent court jurisdiction of petitioner's person.
Keeping in mind that at the time the accident in question occurred, 5 and that at the time petitioner left the state of California and ceased to be domiciled therein or a resident thereof, he did not, by registering his automobile in this state or by obtaining or retaining a license of drive an automobile in this state, give any consent that process might be served upon him outside the boundaries of the state, a reading of the sections of the Vehicle Code in question makes it evident that they do not furnish any basis upon which jurisdiction of the person of the defendant may be acquired by service of process upon him outside of California.
Section 404.1 provides that the acceptance by a resident of this state of a certificate of ownership or a certificate of registration of any motor vehicle...
To continue reading
Request your trial
-
Owens v. Superior Court of Los Angeles County
...the court to enter its order quashing service. Hartford v. Superior Court, 47 Cal.2d 447, 451, 304 P.2d 1; Chesin v. Superior Court, 142 Cal.App.2d 360, 362, 298 P.2d 593; see, 1 Witkin, California Procedure, 1957 Supplement, p. 157. If the facts justify such relief it is immaterial that de......
-
Owens v. Superior Court in and for County of Los Angeles
...this state, consented to the service of process upon him outside of the state. See Vehicle Code, §§ 404.1 to 404.4; Chesin v. Superior Court, 142 Cal.App.2d 360, 298 P.2d 593. In answering this question we are bound by the principles laid down by the United States Supreme Court in Pennoyer ......
-
Abrams v. Stone
...added.) The historical background of the foregoing amendments to the Vehicle Code was set forth in the case of Chesin v. Superior Court, 142 Cal.App.2d 360, 363, 364, 298 P.2d 593. In the case jsut cited the facts are analogous to those presented in the proceeding now before us except that ......
-
Radner v. Eide
...statute. These cases are not relevant here. The statute in question here has recently been construed in the case of Chesin v. Superior Court, 142 Cal.App.2d 360, 298 P.2d 593, in which, on identical facts, the court granted a writ of mandamus to stay further proceedings in a wrongful death ......