Seymour v. Hawkins, 8065.

• Decision Date: 23 November 1942
• Docket Number: No. 8065.,8065.
• Citation: 133 F.2d 15
• Parties: SEYMOUR v. HAWKINS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

133 F.2d 15 (1942)

SEYMOUR v. HAWKINS.

No. 8065.

United States Court of Appeals for the District of Columbia.

Decided November 23, 1942.

Mr. Henry I. Quinn, of Washington, D. C., with whom Mr. Richard W. Galiher of Washington, D. C., was on the brief, for appellant.

Mr. Charles E. Pledger, Jr., of Washington, D. C., with whom Messrs. Frank F. Nesbit and Justin L. Edgerton, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, C. J., and MILLER and EDGERTON, Associate Justices.

MILLER, Associate Justice.

John Paul Seymour was killed in an automobile accident in the District of Columbia on July 16, 1937. On July 15, 1938, hence within the statutory period fixed by the applicable statute,¹ appellant, Seymour's mother, brought suit as administratrix of his estate against appellee Hawkins, a nonresident of the District, and another, for the wrongful death of her son. Between July 15, 1938, and May 23, 1940, five summonses were issued at less than six months' intervals, for personal service upon Hawkins, in the District of Columbia, and each was returned not to be found. On August 15, 1940, over three years after the death of John Paul Seymour, and two years and one month after suit had been filed, service was made upon Hawkins in compliance with the terms of the Financial Responsibility Act by leaving summons and copy of the complaint with the Director of Vehicles and Traffic for the District of Columbia.² The undertaking required by the statute was filed on August 10, 1940. On September 4, 1940, appellee moved to vacate the summons and to discontinue the cause, on the ground that the issuance of summons had been unduly delayed; since the declaration showed upon its face (1) that Hawkins was a resident of the State of Virginia, (2) that substituted service could have been made upon the Director at any time after the filing of suit, (3) consequently, that there had been a discontinuance of the action. On October 12, 1940, the trial court granted the motion and ordered the cause to be discontinued as to appellee Hawkins. On October 22, 1940, appellant moved for rehearing or reconsideration of the court's action; which motion was denied on July 23, 1941.

Under the existing law, alternative methods are available for the service of summons upon a nonresident defendant in a motor vehicle accident case; but in order to make personal service in such a case, it is, of course, necessary that the process server find the defendant within the District of Columbia. It was to avoid what had amounted in some cases to impossibility of making such service that the statute was enacted which permits substituted service upon the Director of Vehicles and Traffic.

It is conceded in the present case that service might have been made pursuant to the provisions of the Financial Responsibility Act immediately after the filing of the complaint. However, it is contended on behalf of appellant that she, being a poor woman, was unable earlier to provide the undertaking which the law requires as a prerequisite to the making of service in the manner described. It is urged further in her behalf that she complied with Rule 24³ of the Rules of Civil Procedure of the District Court of the United States for the District of Columbia, adopted August 16, 1938, by securing the issuance of process, five times during the...