Clews v. Stiles
| Decision Date | 02 March 1960 |
| Docket Number | Civ. No. 4253. |
| Citation | 181 F. Supp. 172 |
| Parties | William A. CLEWS, Plaintiff, v. Elizabeth C. STILES, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Rodey, Dickason, Sloan, Akin & Robb, by Robert D. Taichert, Albuquerque, N. M., for plaintiff.
Gilbert, White & Gilbert by Sumner S. Koch, Santa Fe, N. M., for defendant.
This matter comes on upon the Motion of the defendant Stiles to Quash Service of Process upon her outside the State of New Mexico. The Service was attempted under the New Mexico Non-Resident Service of Process Act enacted by the 1959 Legislature, which purports to give in personam jurisdiction over a defendant served personally outside the State of New Mexico in actions arising out of certain types of occurrences, including torts. The Statute is Chapter 153, Laws of New Mexico 1959, Section 21-3-16, N.M.S.A.1953 (1959 Pocket Supp.). The Act, under our Constitution, became effective in June, 1959. The instant action, predicated upon an automobile accident in New Mexico in May, 1958, was filed in the month of August, 1959.
The New Mexico Act, in most particulars, was copied from a similar Act enacted by the Legislature of the State of Illinois. The defendant, among other attacks, challenges the constitutionality of the 1959 New Mexico Act. A thorough study of the Statute in question, and the authorities pertinent thereto, have implanted in the Court's mind grave doubts as to that Statute's constitutionality. A sound application of the canons of constitutional law, however, makes it improvident for this Court to rule upon this issue at this stage of the proceedings.
It is the general principle of constitutional law, that the courts will not pass on the constitutionality of an Act of the Legislature if the issues of the case may fairly be determined otherwise, without so doing. See Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389; Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736 and Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598. Stated differently, it may be said that a court will pass upon the constitutionality of law only when necessary to the determination upon the merits of the case under consideration. See cases cited in Vance v. Safeway Stores, D.C., 137 F.Supp. 841.
The attack raised by defendant which is dispositive of the case in its present form is that the 1959 Statute was prospective only in its operation, and cannot embrace events which have already occurred. See Cassan v. Fern, 33 N.J.Super. 96, 109 A.2d 482; Monacelli v. Grimes, 9 Terry 122, 48 Del. 122, 99 A.2d 255 and Davis v. Jones, 247 Iowa 1031, 78 N.W.2d 6.
The precise question has not been adjudicated by the Supreme Court of New Mexico, but attention is invited to Johnson v. Terry, 48 N.M. 253, 149 P.2d 795, a 1944 decision involving the construction of a Supreme Court rule enlarging the statutory right in a replevin action by providing for a money judgment in favor of plaintiff at his election, for the value of the property. The Supreme Court held that the rule thus promulgated affected a "substantive right", and was therefore not within the Supreme Court's rule-making power.
It is difficult for this Court to conceive of a more substantive subject than liability in personam imposed by our conventionally known constructive service. The Court realizes that the case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, has atrophied to a great extent by judicial construction, but there is still some life in the beast. At the present time, any statutory attempt to further emasculate that doctrine should be clearly apparent, and it might even be said that such legislation should receive a strict interpretation.
This case does not require strict interpretation. A plain reading of the Statute , together with our constitutional provisions, indicates that the 1959 Statute is prospective only in its application.
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Berghammer v. Smith, ADMIRAL-MERCHANTS
...common law marriages as of time of the marriage, not Michigan law outlawing such marriage as of time of the trial); Clews v. Stiles, 181 F.Supp. 172 (D.N.M.) (federal court applying New Mexico Law denying jurisdiction over nonresidents as of time of the incident, not New Mexico law assuming......
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Harmon v. Eudaily
...was overruled by Carvette v. Marion Power Shovel Co., 157 Conn. 92, 249 A.2d 58 (1968). The District Court decision in Clews v. Stiles, D.N.M., 181 F.Supp. 172 (1960), from which defendant quotes, was reversed on appeal, Clews v. Stiles, 10th Cir., 303 F.2d 290 (1960). Among the states whic......