Herzoff v. Hommel

• Citation: 233 N.W. 458,120 Neb. 475
• Decision Date: 05 December 1930
• Docket Number: 27414
• Parties: M. HERZOFF, APPELLEE, v. J. F. HOMMEL, APPELLANT
• Court: Supreme Court of Nebraska

233 N.W. 458

120 Neb. 475

M. HERZOFF, APPELLEE, v. J. F. HOMMEL, APPELLANT

No. 27414

Supreme Court of Nebraska

December 5, 1930

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Section 1, c. 63, Laws 1929, relating to service on nonresident automobile owners, construed, and that part thereof providing for a continuance not exceeding 90 days from the filing of the action to afford defendant reasonable opportunity to defend such action is found to be discriminatory, hence unconstitutional. However, it being apparent that such part of the continuance clause was not an inducement to the adoption of the remainder of the act, and as such remainder is intelligible, complete, and capable of enforcement, it is not rendered unconstitutional by reason of such discriminatory part of the act. Further, with that part of the continuance clause reading, " not exceeding ninety (90) days from the date of the filing of the action in such court," stricken, the act is clearly within constitutional limitations and enforceable.

Record examined and found to reflect proof sufficient to sustain the verdict of the jury.

Appeal from District Court, Douglas County; Redick, Judge.

Action by M. Herzoff against J. F. Hommel. Judgment for plaintiff, and defendant appeals.

Affirmed.

Brogan, Ellick & VanDusen and James J. Fitzgerald, Jr., for appellant.

Leon & White, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.

OPINION

THOMPSON, J.

This is an action by Herzoff, appellee, against Hommel, appellant, to recover on two causes of action; one for personal injury to his minor son and the other for damages to his automobile, by reason of a collision of Hommel's automobile with that of Herzoff in the city of Omaha on July 28, 1929. Service of notice on appellant was had in accordance with section 1, ch. 63, Laws 1929, providing for service on nonresident automobile owners, all of which is admitted in defendant's answer. At the time of the alleged accident, Hommel was a resident of Kansas City, Missouri, which city was at the time, as well as ever since, the last known address of such Hommel. Herzoff was a resident of Iowa. The jury found in favor of Herzoff on both counts of his petition, and judgment was accordingly entered. Hommel appeals.

For reversal of the judgment Hommel urges that the above act is unconstitutional, in that "it seeks to deprive appellant of the equal protection of the laws and seeks to take his property without due process of law," hence contravenes that part of the Fourteenth Amendment to the Constitution of the United States, which provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In due form he interposed this challenge by way of a special appearance objecting to the jurisdiction of the trial court. This being overruled, the same objection was carried into his answer to the merits.

Such challenge, as we view the record, includes the following: Is the right involved a proper subject of state legislation? Is the manner of service of notice one which makes it reasonably probable that notice of service on the secretary of state will be communicated to the nonresident defendant who is sued? Is the act, wherein it provides for a continuance of not to exceed 90 days from the filing of the action to afford defendant a reasonable opportunity to defend, discriminatory?

The aforesaid section 1, ch. 63, Laws 1929, so far as here material, reads as follows: "The use and operation by a nonresident 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 nonresident 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), 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 with the clerk of the court in which the action is brought an affidavit that he has complied with such requirement. The court in which the action is pending shall order such continuance as may be necessary to afford the defendant reasonable opportunity to defend any such action, not exceeding ninety (90) days from the date of the filing of the action in such court."

The above challenge is before us for the first time. That it is within the constitutional right of a state to safeguard its interests by the enactment of a statute which imposes upon a nonresident thereof using its highways a duty to answer for his conduct is sustained by the weight of authority. In Hess v. Pawloski, 274 U.S. 352, 356, 71...