Jones v. Paxton

• Decision Date: 10 July 1928
• Citation: 27 F.2d 364
• Parties: JONES v. PAXTON.
• Court: U.S. District Court — District of Minnesota

27 F.2d 364 (1928)

JONES v. PAXTON.

District Court, D. Minnesota, Fifth Division.

July 10, 1928.

Cobb, Hoke, Benson, Krause & Faegre, of Minneapolis, Minn., for defendant.

JOHN B. SANBORN, District Judge.

The contention of the defendant is that chapter 409 of the Laws of Minnesota for 1927, which provides that the use of the state highways by a nonresident shall be deemed an appointment by him of the Secretary of State to be his true and lawful attorney, upon whom process may be served, is unconstitutional, and deprives the defendant of his property without due process of law, and is discriminatory, as between residents of the state of Minnesota and nonresidents.

A somewhat similar statute, in the case of Hess v. Pawloski, 274 U. S. 353, 47 S. Ct. 633, 71 L. Ed. 1091, was held to be constitutional. That act (chapter 90, Gen. Laws Mass., as amended by St. 1923, c. 431, § 2) contained the following provision:

"Service of such process shall be made by leaving a copy of the process with a fee of two dollars in the hands of the registrar, or in his office, and such service shall be sufficient service upon the said nonresident: Provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the writ and entered with the declaration. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action."

In the case of Wuchter v. Pizzutti, 48 S. Ct. 259, 72 L. Ed. ___, a statute of New Jersey with reference to service of process upon nonresident automobile owners was held to be unconstitutional, on the ground that the law did not contain a reasonable provision for probable communication to the defendant of the commencement of the action. In other words, the law did not assure any reasonable probability that he would receive actual notice, and might result in fraud, in that it would permit default judgments against nonresidents without any actual notice. The court said:

"In determining the reasonableness of provision for service we should consider the situation of both parties. The person injured must find out to whom the offending automobile belongs. This may be a difficult task. It is easy when the operator of the automobile is present after the accident. That is provided for in the second section of this act by apprehending him or his operator. But the vehicle may be operated by someone who having committed the injury successfully escapes capture or identification. In such a case, the person injured must be left without a remedy by suit at law, as everyone must be who does not know or can not discover the person who injured him. The burden is necessarily on him to investigate and learn. In finding out who it was, and whether...