Gray v. Armijo

• Decision Date: 18 June 1962
• Docket Number: No. 6874,6874
• Parties: Paul L. GRAY and Roger Gray, Petitioners, v. Luis E. ARMIJO, Judge of the Fouth Judicial District Court of the State of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 821

372 P.2d 821

70 N.M. 245

Paul L. GRAY and Roger Gray, Petitioners, v. Luis E. ARMIJO, Judge of the Fouth Judicial District Court

of the State of New Mexico, Respondent.

No. 6874.

Supreme Court of New Mexico.

June 18, 1962.

Adams, Foley & Calkins, Albuquerque, for petitioners.

Lorenzo A. Chavez, Arturo G. Ortega and Melvin L. Robins, Albuquerque, for respondent.

Rodey, Dickason, Sloan, Akin & Robb, Robert D. Taichert, Albuquerque, amicus curiae.

CHAVEZ, Justice.

This case comes before us on petition of Paul L. Gray and Roger Gray for a writ of prohibition against Luis E. Armijo, Judge of the Fourth Judicial District Court of the State of New Mexico, respondent.

Judy Terry, a minor, by Roland Terry, her father and next friend, plaintiffs, filed suit in cause No. 6016, Guadalupe County, New Mexico, against petitioners, Paul Gray and Roger Gray, defendants, seeking damages arising out of an automobile accident which occurred south of Santa Rosa on or about June 21, 1957. Plaintiffs' complaint also alleged that by the operation of the motor vehicle on the highways of New Mexico, petitioners were subject to the provisions of Sec. 21-3-16, N.M.S.A., 1953 Comp., and submitted themselves to the jurisdiction of the courts of New Mexico.

Petitioners-defendants, Paul L. Gray and Roger Gray, will be referred to as 'petitioners' and plaintiffs, Judy Terry, a minor, and Roland Terry, her father and next friend, will be referred to as 'plaintiffs.'

Petitioners were served with copy of summons and complaint in Honolulu, Hawaii, on or about August 9, 1960, pursuant to Sec. 21-3-16, supra. Petitioners appeared specially and filed a motion to quash service of process. After a hearing, the trial court (respondent) overruled petitioners' motion. Thereafter, petition for writ of prohibition was filed in this court and the alternative writ issued.

The following undisputed facts are pertinent: (a) The automobile accident occurred in Guadalupe County, New Mexico, on June 21, 1957; (b) petitioners were residents of New Mexico at the time of the accident and their motor vehicle was involved in said accident on the highways of New Mexico; (c) Sec. 21-3-16, supra, was enacted by Ch. 153 of the 1959 Legislature which became effective on June 12, 1959; (d) thereafter plaintiffs filed suit against petitioners and service of process was made under Sec. 21-3-16, supra, on or about August 9, 1960.

The question presented in this case involves the construction of Sec. 21-3-16, supra, which provides:

'21-3-16. Personal service of process outside state--Business transacted in state--Operation of motor vehicle upon state highway--Tort committed within state--Insurance Contract.--A. Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this subsection thereby submits himself or his personal representative to the jurisdiction of the courts of this state as to any cause of action arising from:

'(1) The transaction of any business within this state;

'(2) The operation of a motor vehicle upon the highways of this state;

'(3) The commission of a tortious act within this state; or

'(4) Contracting to insure any person, property or risk located within this state at the time of contracting.

'B. Service of process may be made upon any person subject to the jurisdiction of the courts of this state under this section by personally serving the summons upon the defendant outside this state and such service has the same force and effect as though service had been personally made within this state.

'C. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction is based upon this section.

'D. Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law.'

Prior to the enactment of Sec. 21-3-16, supra, our legislature, in 1931, had enacted a statute known as the 'Nonresident Motorist Act,' Secs. 64-24-3 and 64-24-4, N.M.S.A., 1953 Comp., which provided the procedure for substituted service on nonresident motorists committing a tort within the state. This statute applied to persons who were nonresidents at the time of the actual occurrence of the tort, but did not apply to persons who were residents of the state at the time of the commission of the tort but who were nonresidents at the time that the action was brought. It became apparent that an inequity existed where a resident of this state committed a tort within New Mexico and then left the state before suit was filed. This court recognized this situation in Fisher v. Terrell, (1947), 51 N.M. 427, 187 P.2d 387. Thus the 1959 Act applied to 'Any person, whether or not a citizen or resident of this state * * *.'

Petitioners contend that Sec. 21-3-16, supra, cannot be applied retroactively. The cite many of our cases which hold that statutes are presumed to operate prospectively only and will not be given retrospective effect unless such intention on the part of the legislature is clearly apparent. Gallegos v. Atchison, T. & S. F. Ry. Co., 28 N.M. 472, 214 P.2d 579; Wilson v. New Mexico Lumber & Timber Co., 42 N.M. 438, 81 P.2d 61; Board of Education of City of Las Vegas v. Boarman, 52 N.M. 382, 199 P.2d 998; Davis v. Meadors-Cherry Co., 65 N.M. 21, 331 P.2d 523.

Petitioners concede that an exception to the above rule is stated in Wilson v. New Mexico Lumber & Timber Co., supra, wherein we stated:

'The general rule is that statutes, except those dealing with remedial procedure, are to be construed as prospective rather than retrospective unless there is a clear legislative intention to the contrary. * * *'

The question then arises as to whether the statute is procedural or substantive in nature. Petitioners contend that the statute in question creates substantive rights and is not procedural. In Johnson v. Terry, 48 N.M. 253, 149 P.2d 795, we held that the rule of court relating to replevin was invalid because it was not merely procedural, but instead was judicial legislation and of no effect. In that case we defined substantive law as follows:

'* * * substantive law, speaking broadly, is that which creates duties, rights, and obligations * * *.'

In State v. Arnold, 51 N.M. 311, 183 P.2d 845, we held that reducing the time for allowance of appeals from six to three months involved procedural and not a substantive change. We said:

'* * * The creating of a right of appeal is a matter of substantive law and outside the province of the court's rule making power. Nevertheless, once the legislature has authorized the appeal, reasonable regulations affecting the time and manner of taking and perfecting the same are procedural and within this court's rule making power.'

Petitioners cite cases from other jurisdictions such as Ashley v. Brown, 198 N.C. 369, 151 S.E. 725; Monacelli v. Grimes, 9 Terry 122, 48 Del. 122, 99 A.2d 255; and Guerra de Chapa v. Allen, D.C., 119 F.Supp. 129, which tend to hold that statutes permitting service of process on nonresident motorists are not merely procedural. However, in the Ashley case the court followed Paraboschi v. Shaw, 258 Mass. 531, 155 N.E. 445, since the North Carolina statute was adopted from that of Massachusetts. Under the Massachusetts and North Carolina statute the court considered that by the operation of a motor vehicle within the particular state such operator consented to the appointment of an agent for service of process. Both of the above courts based their decision not to give the statute retrospective effect on the legal theory that appointment of an agent for service of process created and imposed a contractual obligation and thus created substantive rights which did not exist prior to the enactment of the statute. Duggan v. Ogden, 278 Mass. 432, 180 N.E. 301, 82 A.L.R. 765.

The question of consent to the appointment of an agent for service of process, or the imposition of a contractual obligation, is not present in the New Mexico statute before us. The cases of Monacelli v. Grimes, supra, Guerra de Chapa v. Allen, supra, and other cases cited by petitioners, are distinguishable from the case before us as the New Mexico statute in question does not provide for service of process on a statutory agent impliedly appointed or agreed to by virtue of the statute. No contracts are involved in this case. As to vested rights, there are none in a particular remedy or method of procedure. Ogdon v. Gianakos, 415 Ill. 591, 597, 114 N.E.2d 686, 690; Kessler v. Thompson (N.D.1956), 75 N.W.2d 172, 178.

Petitioners also cite Allen v. Superior Court (Cal.App.1952), 251 P.2d 358. That case was reversed by the Supreme Court of California in a subsequent opinion, Allen v. Superior Court (1953), 41 Cal.2d 306, 259 P.2d 905. In the Allen case, Irving and Jeanette Bromberg sued Robert W. Allen for damages arising out of an automobile accident which occurred in California on November 1, 1947. Thereafter, Allen moved to Oregon where he was personally served with summons and complaint on May 3, 1952. On May 29, 1952, Allen appeared specially and filed a motion to quash on the ground that the court had not acquired jurisdiction of him because the action was in personam. The trial court denied the motion. Allen then callenged the propriety of that denial by seeking a writ of prohibition to restrain the Superior Court of Los Angeles County from taking any further proceedings in said action.

The California statute provides that a person who 'resides out of the State; or has departed from the State; or cannot, after due diligence, be found within the State; or conceals himself to avoid the service of summons' is subject to service by publication. Code of Civ.Proc. Sec. 412. Under such circumstances, personal service outside the state is declared to be 'equivalent to publication.' Ibid., Sec. 413. Section 417 of the Code of Civil...