Hunt v. Tague

Decision Date11 November 1954
Docket NumberNo. 4,4
Citation205 Md. 369,109 A.2d 80
PartiesCatherine F. HUNT v. Edward T. TAGUE.
CourtMaryland Court of Appeals

Robert Alfred Brown, Baltimore, for appellant.

Samuel S. Smalkin, Baltimore (Rollins, Smalkin, Goudy & Weston and Ginsberg & Ginsberg, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This suit for damages was instituted in the Superior Court of Baltimore City by Catherine F. Hunt against Edward T. Tague, deceased, to recover for personal injuries sustained in a motor vehicle collision on a highway in Maryland on April 20, 1950. The summons for the deceased defendant was served on the Secretary of State of Maryland as provided by the Maryland Motor Vehicle Act, and the service was attacked by Rachael M. Tague, widow and executrix of the deceased.

The statutory provision in controversy, Code 1951, art. 66 1/2, § 113, declares that the acceptance by a nonresident of the rights and privileges of using the highways of Maryland, as evidenced by his operation of a motor vehicle on any of the public highways within the limits of this State, shall be deemed equivalent to an appointment by such nonresident of the Secretary of State to be his true and lawful attorney upon whom may be served all lawful processes in any action instituted against him growing out of any accident or collision in which he may be involved while operating or causing to be operated a motor vehicle on such public highway; and such acceptance of the rights and privileges of using the highways or the operation of said motor vehicle within this State shall be a signification of his agreement that such process shall be of the same legal force and validity as if served on him personally.

The statute then provides that service upon the nonresident shall be made by leaving a copy of the process with a fee of $2 in the hands of the Secretary of State or in his office, and such service shall be sufficient service upon the nonresident; provided that notice of such service and a copy of the declaration, cause of action or titling shall forthwith be sent by registered mail by the plaintiff or his attorney to the defendant, and the defendant's return receipt and the plaintiff's or his attorney's affidavit of compliance herewith shall be filed with the clerk of the court in which the proceedings are pending.

Plaintiff, a resident of the District of Columbia, alleged in her declaration that while she was seated in the rear seat of a station wagon automobile on the Washington Boulevard at Elkridge waiting for the traffic signal to change from red to green, defendant's automobile, approaching from the rear, was operated by defendant at such an excessive rate of speed and in such a negligent and wantonly reckless manner that it crashed into the station wagon with such force and impact that it was propelled across the road and crashed into a stationary object there; and that as a result of defendant's negligence plaintiff was seriously injured.

After summons was served on the Secretary of State, plaintiff's attorney mailed notice of the service and a copy of the declaration by registered mail to Edward T. Tague, Farmington, Maine. Tague, however, had died in Farmington on June 18, 1952. The registered letter was delivered on April 10, 1953, to Tague's widow, and plaintiff's attorney received a return receipt postal card signed 'Mrs. Edward Tague,' acknowledging that she had received the registered mail.

On June 5, 1953, Mrs. Tague, appearing specially, moved to quash the service of summons on defendant, because of the fact that defendant was not alive at the time of the filing of the suit. On November 13 Judge Manley, sustaining her motion, quashed the service of summons. On December 12 plaintiff appealed.

On December 21 plaintiff filed a motion to substitute Rachael M. Tague, executrix, as the defendant in the case in place of Tague. On February 23, 1954, Judge Byrnes passed an order directing that the executrix be substituted as the defendant. The declaration was amended accordingly, and plaintiff thereupon served the summons on the Secretary of State and mailed a notice of the service and a copy of the declaration to Mrs. Tague at Farmington, Maine. On March 26 Mrs. Tague again appeared specially and filed a motion to strike out Judge Byrnes' order and to quash the service of process. The Court has not ruled on that motion.

Mrs. Tague moved to dismiss the appeal from Judge Manley's order on the ground that it was not a final judgment. The Maryland Code provides that any party may appeal to the Court of Appeals from any judgment or determination of any court of law in any civil suit or action or in any prosecution for the recovery of any penalty or fine or damages. Code 1951, art. 5, § 2. The Court of Appeals has interpreted the words 'judgment or determination' in this statute to mean final judgment or determination. State v. Harman, 199 Md. 209, 212, 86 A.2d 397. This Court has also specifically held that an appeal may be taken from an order quashing the sheriff's return of a summons for the defendant where the order is a final determination of the case.

In Long v. Hawken, 114 Md. 234, 239, 240, 79 A. 190, 192, 42 L.R.A.,N.S., 1101, the defendant filed a motion to quash the return of the summons against him on the ground that he was a nonresident of Maryland and was in this State for the sole purpose of attending the trial of another case and testifying as a witness. The plaintiff denied that the defendant was attending the trial to testify as a witness. The trial judge, however, quashed the return of summons, and the plaintiff appealed. The Court of Appeals overruled the motion to dismiss the appeal. In commenting on that action, Judge Briscoe, speaking for the Court, said: 'As to the motion to dismiss the appeal, we need only say that the appeal is from the order and determination of the court in granting the defendant's motion to quash the summons and the return of the sheriff thereon, and in such cases the appeal brings up the record for review by this court.'

In State of Maryland, to use of Bickel v. Pennsylvania Steel Co., 123 Md. 212, 216, 91 A. 136, 138, where the equitable plaintiffs entered suit against the steel company, a foreign corporation, to recover damages for the death of their husband and father, the summons was served on R. C. Hoffman & Company as general agent of the corporation. The trial judge quashed the return on the ground that the corporation was not doing business in the State of Maryland and that R. C. Hoffman & Company was not the corporation's general agent. Judge Pattison, speaking for the Court, said in that case: 'But if it be held under the motion in this case that the defendant company is not doing business in this state, and that R. C. Hoffman & Co. is not the agent of the defendant company as aforesaid, then not only will no action lie against the defendant in this state, but there is no one, as disclosed by the record, upon whom process may be served, binding upon the defendant corporation, in the jurisdiction in which this suit is instituted, and therefore the order sustaining the motion to quash the return is so far final as to prevent the further prosecution of the suit, and thus an appeal will lie from said order to this court.'

In Sharpless Separator Co. v. Brilhart, 129 Md. 82, 88, 98 A. 484, 487, an attachment was issued on a judgment, and the sheriff served the summons on a director of the appellant corporation. The trial judge granted a motion to quash the return. On the appeal from that order, Chief Judge Boyd, after citing authorities, reached the following decision: 'We have referred to these cases to show that this court has consistently entertained appeals from orders quashing writs of summons and the returns thereon, when the result of the rulings of the lower court was to put the parties out of court. When the result is to release a fund garnished by an attachment on a judgment, as in this case, there would seem to be an equally good reason for allowing an appeal.'

The rule that an order quashing service of summons on a nonresident for lack of jurisdiction is an appealable final determination has also been adopted in other States. The rule applies, of course, in a case where summons is served under the Motor Vehicle Act as well as in a case where summons is served by the sheriff on a resident of this State.

The rule was accepted by the Supreme Court of Illinois in Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836, 148 A.L.R. 1208. That was a suit against a foreign corporation to recover the workmen's compensation paid to the plaintiff's employee for injuries caused by the negligence of the defendant's employee while unloading steel from the defendant's truck. An...

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22 cases
  • Kortobi v. Kass
    • United States
    • Court of Special Appeals of Maryland
    • October 6, 2008
    ...Normally, such jurisdiction is obtainable only over persons subject to the territorial jurisdiction of the court. See Hunt v. Tague, 205 Md. 369, 109 A.2d 80 (1954). Judge Adkins, now a member of the Court of Appeals, recently wrote for this Court in Taylor, et al. v. CSR, Ltd., et al, 181 ......
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  • Glading v. Furman
    • United States
    • Maryland Court of Appeals
    • March 27, 1978
    ...488 (1975); see Keen v. Keen, 191 Md. 31, 36, 60 A.2d 200 (1948); Garner v. Garner, 56 Md. 127, 128-29 (1881); cf. Hunt v. Tague, 205 Md. 369, 375, 109 A.2d 80 (1954); Ortman v. Coane, 181 Md. 596, 600-601, 31 A.2d 320 (1943) (stating rule that court could not impose personal liability on n......
  • Mooring v. Kaufman
    • United States
    • Maryland Court of Appeals
    • October 14, 1983
    ...219 Md. 422, 426-27, 149 A.2d 768, 771 (1959) (appeal from order granting motion ne recipiatur to declaration). In Hunt v. Tague, 205 Md. 369, 109 A.2d 80 (1954) service on the defendant, by delivering the writ to the defendant's wife, was quashed because the defendant died before the attem......
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