Downing v. Schwenck

• Decision Date: 05 July 1940
• Docket Number: 30852.
• Parties: DOWNING v. SCHWENCK ET AL.
• Court: Nebraska Supreme Court

293 N.W. 278

138 Neb. 395

DOWNING v. SCHWENCK ET AL.

No. 30852.

Supreme Court of Nebraska.

July 5, 1940

Syllabus by the Court.

1. Statute providing that the use of a street or highway by a nonresident motorist or his agent shall be deemed an appointment of the secretary of state as his attorney for service of process in all actions growing out of such operation, held not to have application to the personal representative of a deceased nonresident motorist so as to permit service of process upon the secretary of state as his attorney.

2. Mere liberal construction cannot, for the purpose of embracing other persons than those to whom a statute is expressly made applicable, supply that which the legislature has, either deliberately, or inadvertently, or through lack of foresight omitted.

Appeal from District Court, Cedar County; Ryan, Judge.

Action by Emma S. Downing against W. J. Schwenck and Harry B Carmean, executors of the last will and testament of Peter Metzger, deceased, to recover for personal injuries sustained by plaintiff. From a judgment dismissing the action, the plaintiff appeals.

Judgment affirmed.

The statute providing that the use of a street or highway by a nonresident motorist or his agent shall be deemed an appointment of the Secretary of State as his attorney for service of process in all actions growing out of such operations is inapplicable to the personal representative of a deceased nonresident motorist, since mere liberal construction cannot, for the purpose of embracing other persons than those to whom the statute is expressly made applicable, supply that which the Legislature has, either deliberately, or inadvertently, or through lack of foresight omitted. Comp.St.1929, §§ 20-530, 20-2219.

Fred H. Free and Crary & Crary, all of Sioux City, Iowa, for appellant.

Mapes & Mapes, of Norfolk, and Burkett & Robinson, of Hartington, for appellees.

Heard before SIMMONS, C. J., and ROSE, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

JOHNSEN, Justice.

This is an action for personal injuries sustained by plaintiff, while riding as a guest in an automobile owned and operated by Peter Metzger. Metzger, who was a resident of Ohio, is alleged to have been guilty of gross negligence in driving onto a narrow bridge in Cedar county, Nebraska, and colliding with a truck. He, as well as his wife, were killed in the collision, and this action was attempted to be brought in Cedar county, Nebraska, against his executors, who were residents of Ohio and had been appointed by the courts of that state, by service of process upon the secretary of state, under the nonresident motorists' statute, section 20-530, Comp.St.1929. The executors filed a special appearance on the ground that the statute authorized service of process upon the secretary of state only as against the owner or operator, and not as against his personal representatives. The trial court sustained the special appearance, and, upon plaintiff's election to stand upon the service made, her action was dismissed. She has appealed.

Section 20-530 provides: " The use and operation by a non-resident of the State of Nebraska or his agent of a motor vehicle over or upon any street or highway within the State of Nebraska, shall be deemed an appointment by such non-resident of the secretary of state of the State of Nebraska as his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him, growing out of such use or operation of a motor vehicle over or upon the streets or highways within this state, resulting in damages or loss to person or property, and said use or operation shall be a signification of his agreement that any such process which is so served in any action against him shall be of the same legal force and validity as if served upon him personally within this state. Service of such process shall be made by serving a copy thereof upon the secretary of state or by filing such copy in his office, together with payment of a fee of two dollars ($2.00), and such service shall be sufficient service upon the said nonresident: Provided, that notice of such service and a copy of the process shall within ten (10) days after the date of service be sent by the plaintiff to the defendant by registered mail at defendant's last known address and it shall be the duty of the plaintiff to file...