Olsen v. Dairyland Mutual Insurance Company, 1237.

• Decision Date: 05 January 1966
• Docket Number: No. 1237.,1237.
• Citation: 248 F. Supp. 639
• Parties: Catherine M. OLSEN, Plaintiff, v. DAIRYLAND MUTUAL INSURANCE COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of Montana

248 F. Supp. 639

Catherine M. OLSEN, Plaintiff, v. DAIRYLAND MUTUAL INSURANCE COMPANY, a corporation, Defendant.

No. 1237.

United States District Court D. Montana, Helena Division.

January 5, 1966.

Small & Cummins, Helena, Mont., for plaintiff.

Loble, Picotte, Fredricks & Smith, Helena, Mont., for defendant.

MURRAY, Chief Judge.

Plaintiff brought this action in the First Judicial District Court of the State of Montana to recover on a judgment which she had previously obtained by default in the same State Court against one Theodore H. McKinley in a personal injury action arising out of an automobile accident. She alleges that the present defendant, Dairyland Mutual Insurance Company, was the liability insurer of said McKinley at the time of the accident out of which the default judgment arose, and that under the terms of its policy of liability insurance it is liable to her on the judgment. Defendant removed the action to this court on the grounds of diversity of citizenship pursuant to the provisions of 28 U.S.C.A. § 1441 et seq.

Defendant answered, and after submitting the original judgment roll in the state court action of Catherine M. Olsen vs. Theodore H. McKinley in which the default judgment sued upon was obtained, and obtaining an admission from the plaintiff that the said judgment roll was genuine, defendant moved for summary judgment in this action, pursuant to Rule 56 of the Federal Rules of Civil Procedure, upon the ground that there is no genuine issue as to any material fact, and that the defendant is entitled to judgment as a matter of law. The basis of the motion is that the judgment roll in the state court action of Olsen v. McKinley, which is before this court and conceded to be genuine, shows on its face that service of process was never obtained on the defendant McKinley, and that, therefore, the default judgment entered in that action and sued upon here is invalid and void and subject to collateral attack.

From the judgment roll in Olsen v. McKinley it is clear, and the plaintiff concedes, that no personal service of the summons and complaint was ever obtained on the defendant in that action. However, plaintiff contends that constructive service was obtained under the provisions of Chapter 2 of Title 53 (§§ 53-201 to 53-206) R.C.M. 1947, which provides that in certain circumstances, service of process in actions arising out of automobile accidents may be made upon the Secretary of State of the State of Montana. Section 53-204, R.C.M. 1947, provides how such constructive service is to be made and reads in part as follows:

"53-204. Service of process, how made—fees. Service of such summons or process under sections 53-202 and 53-203 shall be made by leaving a copy thereof with a fee of five dollars ($5.00) with the secretary of state of the state of Montana, or in his office, and such service shall be sufficient and valid personal service upon the defendant.

"Provided, that notice of such service and a copy of the summons or process is forthwith sent by registered mail requiring personal delivery, by the plaintiff to the defendant and the defendant's return receipt and plaintiff's affidavit of compliance herewith are appended to the process and entered as a part of the return thereof;"

Examination of the judgment roll in Olsen v. McKinley discloses that there was no compliance with the above quoted provisions of Section 53-204 in the attempt to obtain constructive service on the defendant McKinley. Included in the judgment roll are three unopened envelopes addressed to Theodore H. McKinley at Havre, Montana, and bearing the return address of plaintiff's counsel which were sent to McKinley by registered mail on October 10, 1961, December 22, 1961, and June 7, 1962, respectively, and returned to the sender in each instance unclaimed, or because of insufficient address or the addressee was unknown. In connection with each of these registered mailings, the judgment roll also contains an "Affidavit of Mailing". The affidavit concerned with the October 10, 1961, mailing reads as follows:

"BETTY J. DAVIS, being first duly sworn, deposes and says:

"That she is a resident of the State of Montana, over the age of 18 years, not a party to nor interested in the above entitled action;

"That on the 10th day of October, 1961, she served a true copy of the attached Summons and Complaint on Theodore H. McKinley, by depositing such copy of the said Summons and Complaint on said date in the United States Post Office at Helena, Montana, properly enclosed in a sealed envelope addressed to the said Theodore H. McKinley, Havre, Montana, by registered mail, postage thereon having been duly prepaid "That in each of the said places there is a United States Post Office, and between said cities of Havre, Montana, and Helena, Montana, there is a regular daily communication by mail."

The affidavits in connection with the other two mailings are identical except as to the date of mailing and that the affiant is one Robin Alley rather than Betty Davis.

It is apparent from the affidavits that these registered mailings to the defendant McKinley do not constitute the "notice of such service (under Sections 53-202 and 53-203)" as is required by Section 53-204, because they contained only a copy of the summons and complaint, and no notice of service upon the Secretary of State, as the statute demands.

Likewise, neither the affidavits nor the envelopes in which the mailings were made show that the registered mail was sent "requiring personal delivery" as required by the statute, and there is not otherwise any evidence in the judgment roll that this provision of the law was complied with.

Finally, there is no return receipt of the defendant showing receipt of notice of service as the statute requires. This is probably the most fatal defect of all, because, as Judge Jameson of this court pointed out in Bucholz v. Hutton, D.C., 153 F.Supp. 62, the Montana statute and similar constructive service statutes require that the defendant actually receive the notice of service and that his receipt therefor be filed. In an exhaustive annotation on this subject in 95 A.L.R.2d 1034, the annotator states at page 1039:

"Some nonresident motorist statutes in effect make the filing of the return receipt a condition of valid service on the nonresident, by declaring that service on a designated state official shall be sufficient service on the nonresident `provided' or `if' certain other acts are done, among them the filing of the return receipt." (This is the Montana statute).

"Under this type of statute, the failure to file such a receipt renders the service invalid, in the absence of extenuating circumstances."

Further, at page 1043 of the same annotation, it is stated:

"Service of process under a nonresident motorist statute requiring the filing of the nonresident's return receipt has generally been held invalid if the nonresident did not sign a return receipt because as a result of his having moved without leaving a forwarding address the registered letter was not delivered to him."

And at 1045, it is stated:

"According to the weight of authority, service of process under a nonresident motorist statute requiring the filing of the nonresident's return receipt is invalid if no return receipt is filed because the nonresident failed or refused to claim the registered letter sent to him pursuant to the statute."

Therefore, under the authorities, it is clear that the attempted service of process on McKinley was invalid. As Judge Jameson pointed out in Bucholz v. Hutton, supra, 153 F.Supp. at page 65, "Even though the statutes and proceedings should be liberally construed there must be a compliance with the plain mandates of the statute." The judgment roll in Olsen v. McKinley demonstrate a complete failure to comply with the plain mandates of the statute.

In support of his claim that the service is valid, counsel for plaintiff relies on State ex rel. Charette v. District Court of Silver Bow County, 107 Mont. 489, 86 P.2d 750. In that case the defendant refused to accept the Notice of Service and copy of summons which were mailed to him in compliance with the statute. In refusing, in effect, to quash the service, the Montana Supreme Court held simply that the defendant could not complain of the plaintiff's failure to comply with the statute when his own wilful act prevented plaintiff's literal compliance therewith. That was an entirely different situation than the present one. Here there is no showing that the plaintiff's failure to comply with the statute resulted from any wilful act of the defendant.

Plaintiff contends that the judgment in Olsen v. McKinley is not subject to collateral attack. In 30 Am.Jur. "Judgments", Section 881, p. 794, it is stated, "In the absence of a waiver of service, a judgment may be subject to collateral attack because of its rendition against one who was never legally served with the process of the court." As above pointed out, the defendant McKinley was never served with process, legally or otherwise, as shown by the judgment roll. In West v. Capital Trust & Savings Bank, 113 Mont. 130, 124 P.2d 572, the Montana Supreme Court stated, at page 575:

"It is conceded here that the attack upon the foreclosure decree is collateral. The rule is well

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