Hoen v. District Court In and For Arapahoe County in Eighteenth Judicial Dist.
| Decision Date | 28 March 1966 |
| Docket Number | No. 22032,22032 |
| Citation | 412 P.2d 428,159 Colo. 451,19 A.L.R.3d 131 |
| Parties | , 19 A.L.R.3d 131 Kenneth H. HOEN and Industrial Commission of the State of Colorado, Petitioners, v. The DISTRICT COURT IN AND FOR the COUNTY OF ARAPAHOE IN the EIGHTEENTH JUDICIAL DISTRICT, and the Honorable William B. Naugle, one of the Judges thereof, and William C. Nealon, Respondents. |
| Court | Colorado Supreme Court |
Myrick, Criswell & Branney, Englewood, for petitioners.
Williams, Erickson & Brown, Denver, for respondents District Court in and for Arapahoe County and Honorable William B. Naugle.
Richard D. Law, Denver, for respondent William C. Nealon.
This is an original proceeding and concerns chapter 119 of the Session Laws of 1965, which statute is sometimes referred to as the 'long-arm' or 'single act' statute, but will hereinafter be referred to as simply the statute.
The statute, insofar as it relates to the present controversy, provides as follows:
'Section 1.--Jurisdiction of courts.--(1) (a) Engaging in any act hereinafter enumerated by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits such person, and, if a natural person his personal representative, to the jurisdiction of the courts of this state, concerning any cause of action arising from:
'(c) The commission of a tortious act within this state;
'Section 2.--Service of Process.--(1) Service of process upon any person subject to the jurisdiction of the courts of Colorado may be made by personally serving the summons upon the defendant outside this state, in the manner prescribed by the Colorado rules of civil procedure, with the same force and effect as if the summons had been personally served within this state.'
The effective date of the statute was May 10, 1965.
On June 28, 1965, Hoen and the Industrial Commission of Colorado filed a complaint in the district court in Arapahoe County against William Nealon, alleging that he (Hoen) had suffered damage as a result of Nealon's negligence arising out of an automobile collision which occurred on December 8, 1960 in Arapahoe County. On June 29, 1965, pursuant to the provisions of the statute, Nealon was personally served in Pennsylvania, Nealon as of that date having been a resident of that state for some three and one-half years, although at the time of the accident and for several years thereafter he had been a resident of Colorado. Thereafter, Nealon filed a motion to quash the purported service upon him, alleging that the statute is in conflict with the constitutions of the State of Colorado and of the United States and that even if said statute be deemed intrinsically constitutional, it cannot be given 'retrospective' effect by applying it to tortious acts occurring prior to its effective date.
The trial court granted this motion and entered an order quashing the purported service of process. The reason assigned by the trial court for its order of quashal was Not that the statute was unconstitutional, as such, but rather that the statute 'cannot have a retroactive effect' and hence the court could not acquire jurisdiction by virtue of service of process used in this case inasmuch as the tortious act complained of occurred on December 8, 1960.
It was at this juncture that Hoen and the Industrial Commission of Colorado, as petitioners, initiated this original proceeding in this court, asking that a rule issue to the district court in and for Arapahoe County and to the Honorable William B. Naugle, one of the judges thereof, directing the respondents to show cause, if such they could, why the order quashing the service of summons should not be set aside and vacated. We ordered that such a rule to show cause issue, and the respondents having now filed their answer and response thereto, the matter now awaits our determination.
The issues raised are basically two in number: (1) was the rule to show cause improperly entered, respondents contending in this regard that the order of the trial court quashing the purported service is a 'final' order and subject to review by writ of error; and (2) does the statute have any applicability where, though the complaint was filed After the effective date of the statute, the tortious act complained of occurred Prior to the effective date thereof.
We find no merit to respondents' initial contention that the order of the respondent court granting Nealon's motion to quash service of process is a 'final' and 'appealable' order, and as such subject to review by writ of error. It is urged in this connection that since the order of quashal is subject to review by writ of error, there is accordingly no need to invoke the original jurisdiction of this court. Rule 111, R.C.P. Colo. states that a writ of error shall lie to a 'final judgment' of any district court. An order quashing service of summons is not a 'final judgment,' nor does such action even justify an order of dismissal. In Fletcher v. District Court, 137 Colo. 143, 322 P.2d 96, we stated that the 'mere failure to obtain proper service does not warrant dismissal of the cause of action.' Counsel contend that the rationale of the Fletcher case has no applicability to the present controversy, and distinguishes that case from the instant one by pointing out that in the Fletcher case the service of process was defective as to form only; whereas in the instant case it is claimed that because Nealon is a resident of Pennsylvania, personal service upon Nealon 'could never be had under any circumstance.' In other words, the order quashing service on Nealon is said to have effectively terminated the action.
In the recent case of Bolger v. Dial-A-Style Leasing Corporation, Colo., 409 P.2d 517 which involved attempted service of process upon a foreign corporation, we again stated that it was improper to dismiss a complaint because of improper or invalid service of process. While there may well be some diversity of judicial...
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