Myrick v. Superior Court of State
| Decision Date | 29 April 1953 |
| Citation | 256 P.2d 348 |
| Court | California Court of Appeals Court of Appeals |
| Parties | . * Civ. 15683. District Court of Appeal, First District, Division 1, California |
Sidney L. Weinstock, Roger Anderson and Harold J. Chase, San Francisco, for petitioner.
James F. Boccardo, San Jose, for respondent.
Petition for a writ of prohibition.
By this proceeding petitioner seeks to restrain the trial court from further proceeding in a personal injury action in which he is a defendant, and in which he was served with process while residing outside of California, it being his contention that such service was void and conferred no jurisdiction on the California courts.
The facts, stated chronologically, are as follows:
July 19, 1951--On this date petitioner and the real party in interest were involved in an automobile accident in California. Petitioner was then a resident of California.
September 22, 1951--This is the effective date of section 417 of the Code of Civil Procedure, which purports to permit service outside of the state on persons who were residents of this state when the cause of action was filed. Stats. of 1951, p. 2537, Chap. 935.
November 28, 1951--On this date the real party in interest filed an action in Santa Clara County against petitioner, who was then still a resident of California.
November 28, 1951, to February 5, 1952--Some time between these dates petitioner was arrested at the request of the New York authorities and taken to New York. The real party in interest made diligent but unsuccessful efforts to serve petitioner in this state before he left the state.
February 5, 1952--Petitioner alleges that on this date he became a resident of New York, and ever since such date has continued to reside there. There is no averment as to the domicile of petitioner.
April 8, 1952--The real party in interest filed an affidavit averring that the defendant in the civil action, petitioner here, had left the state and was on said date a resident of New York in a designated penitentiary. On this same date an order for publication of summons, and for personal service of the summons and complaint on petitioner in New York, was made. As a basis for this order the trial court found that on July 19, 1951, the date of the accident, and on November 28, 1951, the date the civil action was filed, the defendant in the civil action was a resident of California, but has since left the state and now resides in New York.
April 18, 1952--It is admitted that on this date petitioner was personally served with process in the civil action in New York.
November 10, 1952--Petitioner moved to quash the service of summons upon the ground that the trial court had not acquired jurisdiction over him or over the subject matter.
January 6, 1953--Motion to quash denied.
January 13, 1953--This petition for a writ of prohibition was filed.
In addition, the petition avers that it is impossible for petitioner to return to California to defend the action, and that to uphold the validity of the service would deprive him of due process.
Before discussing the legal issues presented, reference should be made to the statutes involved. The basic problem involves the interpretation and validity of section 417 of the Code of Civil Procedure, which became effective September 22, 1951. It provides: 'Where jurisdiction is acquired over a person who is outside of this State by publication of summons in accordance with Section 412 and 413, the court shall have the power to render a personal judgment against such person only if he was personally served with a copy of the summons and complaint, and was a resident of this State at the time of the commencement of the action or at the time of service.'
This section on its face purports to be a limitation on sections 412 and 413 of the Code of Civil Procedure. Both of these sections were amended, in minor respects, in 1951 at the same time that section 417 was adopted. Stats. of 1951, Chap. 1737, § 48, p. 4099; Chap. 43, p. 167. As amended, they read in part as follows:
* * *'
It is the basic theory of petitioner that under the decisions of the California courts it constitutes a denial of due process to provide by statute that this state may secure in personam jurisdiction, by publication or by service outside the state, over an absent nonresident defendant. It is urged that if section 417 so provides it is unconstitutional. This argument is predicated upon the case of De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82, decided in 1896, which, in turn, is based upon Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, decided in 1877. In the De la Montanya case, in a four-to-three decision, it was held that sections 412 and 413 of the Code of Civil Procedure should not be interpreted to permit the obtaining of jurisdiction over an absent defendant in an in personam action because if such sections were so interpreted they would be unconstitutional under the rule of Pennoyer v. Neff. It is argued that since the rule of the De la Montanya case has not been limited by any subsequent California decision so as to make the sections applicable to personal service over absent defendants, and since this court in 1945, in Pinon v. Pollard, 69 Cal.App.2d 129, 158 P.2d 254, expressly rejected the argument that subsequent federal cases had broadened the concept of jurisdiction over absent defendants, the De la Montanya case remains as binding authority on this intermediate appellate court, and compels a holding that the service here challenged was void.
The De la Montanya case undoubtedly supports petitioner. It was there held that California could not secure jurisdiction over an absent domiciliary by publication under sections 412 and 413 of the Code of Civil Procedure so as to render a valid judgment against him for alimony and support, child custody and suit money. An order refusing to vacate such judgment was reversed, even though defendant was not only domiciled in California but had left this state to evade service. The court held that California had no power, even over one of its own domiciliaries, to secure jurisdiction over such absent defendant because to so hold would be to encroach upon the independence of the sister state. Throughout the opinion it is broadly implied, if not expressly held, that to thus provide that service by publication is sufficient to secure jurisdiction over an absent defendant in an in personam action would be to deny to such defendant due process under the federal Constitution. The basic case relied upon is Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.
It will be noted that both the De la Montanya and Pennoyer cases involved service by publication. Although sections 412 and 413 of the Code of Civil Procedure still permit service by publication, the newly enacted section 417 of that code limits those sections by requiring actual personal service outside the state. While the De la Montanya case contains a dictum to the effect that the rule there announced invalidated not only constructive service but actual service outside the state, such problem was not there involved. This distinction will become of vital importance when, later in this opinion, we discuss the reasonableness of the method provided in the statute.
There is no doubt that the rule of the De la Montanya case, together with its dictum on personal service outside the state, if it is still the law, would invalidate the service here involved. But the real party in interest contends, and we agree, that that case is no longer the law and should not be followed in situations covered by section 417.
As already pointed out, the De la Montanya case is predicated upon Pennoyer v. Neff which held that one state lacked power to acquire jurisdiction in personam over a defendant in another state by such method of service. This is no longer the law. In recent years there have been many limitations placed on the concept of lack of power in a state to thus acquire jurisdiction over an absent defendant, as well as a repudiation of the concept that due process is somehow involved in the problem.
One such great limitation is illustrated by such cases as Kane v. New Jersey, 242 U.S....
To continue reading
Request your trial
-
Smith v. Smith
...wider concept would include a domiciliary. Appellant relies for his interpretation of residence as a factual concept on Myrick v. Superior Court, Cal.App., 256 P.2d 348, which contains language which seems to distinguish the resident of Section 417 from the domiciliary of Milliken v. Meyer.......