Radner v. Eide

• Decision Date: 19 June 1957
• Citation: 151 Cal.App.2d 800,312 P.2d 74
• Parties: Irvin Max RADNER, Plaintiff and Appellant, v. Oliver Roger EIDE et al., Defendants and Respondent. Civ. 17328.
• Court: California Court of Appeals Court of Appeals

Page 74

312 P.2d 74

151 Cal.App.2d 800

Irvin Max RADNER, Plaintiff and Appellant, v. Oliver Roger EIDE et al., Defendants and Respondent.

Civ. 17328.

District Court of Appeal, First District, Division 2, California.

June 19, 1957.

Hearing Denied Aug. 13, 1957.

Philander Brooks Beadle, John T. Tully, San Francisco, for appellant.

Ropers & Marjeski, Robert F. Kane, Redwood City, for respondent.

KAUFMAN, Presiding Justice.

This is an appeal from an order granting the respondent's motion to quash service of summons in an action brought by the appellant, Irvin Max Radner in the Superior Court of the County of San Mateo. Such an order in appealable under Code of Civil Procedure, Section 963(4).

The facts which are not disputed are as follows: In February 1954, the respondent was a resident of the City of Mountain View, in Santa Clara County. On February 22, 1954, while driving an automobile owned by him on a public highway in said county he was involved in an accident in which the appellant was injured. On March 1, 1954, the respondent moved to the State of Washington and has since that date at all times been a resident and domiciliary of the State of Washington. The complaint in this action was filed on February 21, 1955. The summons was issued on the same date, and personal service of the summons and a copy of the complaint was made on the respondent on March 12, 1956, in the State of Washington by Deputy Sheriff L. R. Williams, a public officer of the County of Kitsap, State of Washington, duly authorized to serve process. On April 3, 1953, the respondent was issued a California vehicle operator's license, No. Z1002701 which expired on April 3, 1957.

The only issue on appeal is whether personal jurisdiction of the respondent was obtained by service of the summons and copy of the complaint in the State of Washington on March 12, 1956.

Appellant contends that the trial court erred in granting the respondent's motion to quash the service of the summons, because the respondent consented to the service, under Vehicle Code Sections 404.1 to section 404.3 which are as follows:

's 404.1. Service of Process on Resident Accepting Certificate of Ownership or Registration. The acceptance by a resident of this State of a certificate of ownership or a certificate of registration of any motor vehicle or any renewal thereof, issued under the provisions of this code, shall constitute the consent by such person that personal service of summons may be made upon him at any place where he may be found, whether or not he is then a resident of this State, with the same force and effect as though served within this State, in any action brought in the courts of this State upon a cause of action arising in this State out of the ownership or operation of said vehicle. (Added Stats.1955, c. 796, p. 1397, § 1.)

's 404.2. Service of Process on Person Accepting or Retaining Operator's or Chauffeur's License. The acceptance by a resident of this State, after the effective date of this section, of an operator's or chauffeur's license issued pursuant to the provisions of this code, shall constitute the consent of such person that personal service of summons may be made upon him at any place where he may be found and whether or not he is then a resident of this State, with the same force and effect as if served within the State in any action brought in the courts of this State upon a cause of action arising in this State out of his driving a motor vehicle upon any public road or highway in this State.

'The retention of an operator's or chauffeur's license issued under the provisions of this code by a resident of this State for more than 180 days after the effective date of this section shall likewise operate as a consent of the licensed holder to the service of summons as hereinbefore provided for as to a person accepting an operator's or chauffeur's license after said effective date. (Added Stats.1955, c. 796, p. 1397, § 2.)

's 404.3. Manner of Serving Process; Time to Appear. In the event summons is served outside of this State, pursuant to the provisions of Sections 404.1 and 404.2, it may only be served by a public officer of the State in which service is made, qualified by the laws of that state to serve process, or by an elisor appointed for that purpose by the court out of which the summons is issued. In the event of such service outside the State, the person so served shall have 60 days in which to appear in the action in which the summons is issued. (Added Stats.1955, c. 796, p. 1398, § 3.)

's 404.4. When Statutes of Limitation Are Not Tolled. Notwithstanding any provisions of Section 351 of the Code of Civil Procedure to the contrary, when summons may be personally served upon a person as provided in Sections 404.1 and 404.2, the time of his absence from this State is part of the time limited for the commencement of the action described in said sections, except when he is out of this State and cannot be located through the exercise of reasonable diligence; provided, this Section 404.4 in no event shall be applicable in any action or proceeding commenced on or before September 7, 1956. (Added Stats.1955, c. 796, p. 1398, § 4.)'

This statute became effective on September 7, 1955, at which time the respondent was no longer a resident of this state. It is appellant's argument that the controlling date is not the effective date of the statute but the date of service, which was March 12, 1956. Appellant relies on Smith v. Finley, 112 Cal.App.2d 599, 246 P.2d 989 and Lebkicker v. Crosby, 123 Cal.App.2d 631, 267 P.2d 361, which were concerned with the interpretation of Civil Code Section 956, which provides for the survival of actions for personal injury, and which held that the code section could apply to an accident which occurred before the effective date of the statute, provided, the death of the tort-feasor occurred after the effective date of the statute. These cases are not relevant here.

The statute in question here has recently been construed in the case of Chesin v. Superior Court, 142 Cal.App.2d 360, 298 P.2d 593, in which, on identical facts, the court granted a writ of mandamus to stay further proceedings in a wrongful death action to a petitioner who had been a resident of California at the...