McBride v. Bitner

• Decision Date: 02 October 1981
• Docket Number: No. 51854.,51854.
• Citation: 310 NW 2d 558
• Parties: Joyce D. McBRIDE, et al, Respondents, v. Charles Robert BITNER, Jr., Appellant.
• Court: Minnesota Supreme Court

310 N.W.2d 558 (1981)

Joyce D. McBRIDE, et al, Respondents, v. Charles Robert BITNER, Jr., Appellant.

No. 51854.

Supreme Court of Minnesota.

October 2, 1981.

Ochs, Larsen, Klimek & Peterson and Robert Mabel, Minneapolis, for appellant.

James R. Schwebel & Assoc. by Leo Daly, Minneapolis, for respondents.

Considered and decided by the court en banc without oral argument.

AMDAHL, Justice.

The question raised by this appeal is whether plaintiffs commenced their action in Hennepin County District Court for damages arising out of an automobile accident, which occurred on June 18, 1974, within the 6-year period provided by Minn.Stat. § 541.05, subd. 1 (1980).¹ The trial court held that they had done so and denied defendant's motion for dismissal on grounds of lack of jurisdiction, insufficiency of process and insufficiency of service of process.² Having concluded that the record does not support the rationale on which the trial court found that the action had been commenced in time, we reverse. We conclude also, however, that the record does not contain sufficient information to determine that issue.

The collision giving rise to the action occurred on a Wright County road. Defendant at that time resided in Annandale in Wright County; he subsequently moved to northern Minnesota and ultimately became a resident of Missouri. Plaintiffs consulted their attorney on April 21, 1980, and on their behalf he prepared a complaint seeking damages for injuries sustained by Mrs. McBride in the 1974 accident. His efforts to serve process on defendant and obtain jurisdiction over him began with delivery of the summons and complaint to the Wright County sheriff on April 29, 1980 for personal service on defendant. On May 12, 1980, the sheriff returned the process, stating that he could not find defendant and that his last known address was Box 161, Mora, Minnesota.

Failure to obtain personal service over defendant led plaintiffs' attorney to hire a "skip tracing" service on May 18, 1980. Based on information furnished by this service, he forwarded the summons and complaint to the sheriff of Aitkin County on May 20, 1980 for service on defendant at McGrath, Minnesota. The sheriff returned the process with the information that defendant had moved. Plaintiffs' attorney was thus faced with the prospect that the action would be barred by Minn.Stat. § 541.05, subd. 1(5) (1980) on June 18, 1980 if the action was not "commenced" by that date. Minn.R.Civ.P. 3.01, dealing with commencement of actions, provides:

A civil action is commenced against each defendant when the summons is served upon him or is delivered to the proper officer for such service; but such delivery shall be ineffectual unless within 60 days thereafter the summons be actually served on him or the first publication thereof be made.

On June 6, 1980, plaintiffs' counsel filed an affidavit with the Hennepin County District Court stating that diligent effort to locate defendant in the state had been unsuccessful and that he did not know his whereabouts. On the basis of this affidavit, he obtained an ex parte order from a judge of that court purporting to authorize service by publication pursuant to Minn.R. Civ.P. 4.04. Publication of the summons was made on June 14, 21, and 28, 1980. On these facts the trial court held that delivery of process to the Wright County sheriff on April 29, 1980 had been delivery to "the proper officer for such service" and, by reason of the first publication within 60 days thereafter, was effectual to commence the action on April 29, 1980.

It is clear that delivery to the Wright County sheriff was delivery to a "proper officer" since defendant was, so far as plaintiff knew, still a resident of the county and had actually lived there at the time of the accident in 1974. See Berghuis v. Korthuis, 228 Minn. 534, 37 N.W.2d 809 (1949). In that case, as here, the defendant was a resident of the county in which the accident occurred, Kandiyohi County, but subsequently moved out of the state. One year later, four days before expiration of the applicable limitation period, plaintiff brought a wrongful death action against him and, believing that defendant still lived in Kandiyohi County, sent process to the sheriff of that county for personal service. This court held that the sheriff was a "proper officer for such service" within the meaning of Minn.Stat. § 541.12 (1949), which provided:

An action shall be considered as begun against each defendant when the summons is served on him * * * or is delivered to the proper officer for such service; but, as against any defendant not served within the period of limitation, such delivery shall be ineffectual, unless within 60 days thereafter the summons be actually served on him or the first publication thereof be made.

In Berghuis, as here, the sheriff made a return of no service. Within 60 days thereafter, however, a constable made personal service on the defendant when he returned to visit his family home. We held that this personal service upon the defendant made the delivery of process to the sheriff effectual to commence the action within the limitation period.

In this case, however, we are required to hold that the attempt by plaintiffs' attorney to attain timely commencement of the action through a first publication of the summons within 60 days after its delivery to the Wright County sheriff was ineffective. Minn.R.Civ.P. 4.04 provides:

The summons may be served by three weeks\' published notice in any of the cases enumerated hereafter when there shall have been filed with the court the complaint and an affidavit of the plaintiff or his attorney stating the existence of one of such cases, and that he believes the defendant is not a resident of the state, or cannot be found therein, and either that he has mailed a copy of the summons to the defendant at his place of residence or that such residence is not known to him. The service of the summons shall be deemed complete 21 days after the first publication. Personal service of such summons without the state, proved by the affidavit of the person making the same sworn to before a person authorized to administer an oath, shall have the same effect as the published notice herein provided for.

Such service shall be sufficient to confer jurisdiction:

(1) When the defendant is a resident individual having departed from the state with intent to defraud his creditors, or to avoid service, or keeps himself concealed therein with like intent;

(2) When the plaintiff has acquired a lien upon property or credits within the state by attachment or garnishment, and

(a) The defendant is a resident individual who has departed from the state, or cannot be found therein, or

(b) The defendant is a nonresident individual, or a foreign corporation, partnership or association;

When quasi in rem jurisdiction has been obtained, a party defending such action thereby submits personally to the jurisdiction of the court. An appearance solely to contest the validity of such quasi in rem jurisdiction is not such a submission.

(3) When the action is for divorce or separate maintenance and the court shall have ordered that service be made by published notice;

(4) When the subject of the action is real or personal property within the state in or upon which the defendant has or claims a lien or interest, or the relief demanded consists wholly or partly in excluding him from any such interest or lien;

(5) When the action is to foreclose a mortgage or to enforce a lien on real estate.

It is apparent from a reading of the rule that it did not authorize publication merely because plaintiffs' attorney had made diligent but unsuccessful efforts to locate defendant in this state. We cannot reasonably construe Minn.R.Civ.P. 3.01 as providing that a publication unauthorized by rule or statute can have the effect of making the date on which process was delivered to the sheriff the date on which an action is commenced. This conclusion requires that we review the other efforts made by plaintiffs' attorney to commence...