Duncan v. McDonough

• Decision Date: 31 March 1964
• Citation: 105 N.H. 308,199 A.2d 104
• Parties: Eleanor C. DUNCAN v. Robert L. McDONOUGH. Joseph L. DUNCAN v. Robert L. McDONOUGH.
• Court: New Hampshire Supreme Court

Page 104

199 A.2d 104

105 N.H. 308

Eleanor C. DUNCAN v. Robert L. McDONOUGH.

Joseph L. DUNCAN v. Robert L. McDONOUGH.

Supreme Court of New Hampshire.

Submitted Feb. 5, 1964.

Decided March 31, 1964.

Fisher, Parsons, Moran & Temple, Dover, for plaintiffs.

Wiggin, Nourie, Sundeen, Nassikas & Pingree, Manchester, for defendant.

LAMPRON, Justice.

RSA 510:2 provides that 'all writs and other processes shall be served by giving to the defendant or leaving at his abode an attested copy thereof, except in cases otherwise provided for.' These provisions are mandatory. Rogers v. Buchanan, 58 N.H. 47. The sheriff's return of non est inventus attests to the fact that there was no service made on the defendant in accordance with the mandates of the above statute either in person or at his abode. Clark v. Bradstreet, 99 N.H. 55, 57, 104 A.2d 739.

Absent such service, jurisdiction over the defendant on the basis of his domicile or residence in this state cannot be obtained by other process without a statute granting such authority. Restatement (Second) Conflict of Laws, s. 79, comment b (Tent. Draft No. 3, 1956). Such a statute in order to comply with the requirements of due process would have to provide for 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' Schroeder v. City of New York, 371 U.S. 208, 211, 83 S.Ct. 279, 282, 9 L.Ed.2d 255; Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278; 73 Harv.L.Rev. 909, 917.

We find no statute which grants judicial jurisdiction to our courts over an inhabitant, resident or domiciliary of this state who cannot be served in accordance with the provisions of RSA 510:2, by service on his liability insurance carrier at its place of business in New Hampshire.

Plaintiff relies on RSA 510:8 which reads as follows: 'Other Notice. When the defendant is not an inhabitant of the state, and no mode of serving the writ is prescribed, or service thereof cannot be made in the mode prescribed, the action may be entered in court and such notice ordered as the case requires; and notice of the pendency of the suit, given according to the order, shall be sufficient service.' This statute in substantially the same language was first enacted in 1852. Laws 1852, ch. 1297. It was then the law that, except where conditions of the status of one of its citizens towards a non-resident was involved or the property of a non-resident situated in this state had been attached and rights therein were to be adjudicated, no jurisdiction could be obtained to render a personal judgment against a non-resident unless personal service had been made on him in New Hampshire. Downer v. Shaw, 22 N.H. 277; Eaton v. Badger, 33 N.H. 228; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Restatement (Second), Conflict of Laws, s. 78, comment a (Tent. Draft No. 3, 1956); 73 Harv.L.Rev., 909, 966, 980. Later cases have been decided on the same basis. Maryland Casualty Co. v. Martin, 88 N.H. 346, 347, 189 A. 162; Clark v. Bradstreet, 99 N.H. 55, 57, 104 A.2d 739; Rosenblum v. Judson Engineering Corp., 99 N.H. 267, 269, 270, 109 A.2d 558; Sampson v. Conlon, 100 N.H. 70, 119 A.2d 707. See Parsons & Sons Lumber Co. v. Southwick, 101 N.H. 258, 259, 139 A.2d 883.

We are familiar with the change in the rule as to state jurisdiction over foreign corporations promulgated by the United States Supreme Court in International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 317, 66 S.Ct. 154, 90 L.Ed. 95. For the former doctrines of consent and presence in a state as the basis for jurisdiction over foreign corporations, this case substituted 'certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'' International Shoe Co. v. State of Washington, supra, 326 U.S. 316, 66 S.Ct. 158, 90 L.Ed. 95. The extent to which this change from emphasis on territorial limitations of state courts to emphasis on the contacts approach in defining due process will be applied to non resident individuals is still in a state of flux. Benson v. Brattleboro Retreat, 103 N.H. 28, 30, 164 A.2d...