Smyrnios v. Weintraub, 5517-5520.

Decision Date08 May 1933
Docket NumberNo. 5517-5520.,5517-5520.
Citation3 F. Supp. 439
PartiesSMYRNIOS v. WEINTRAUB (two cases). McCARTHY v. SAME (two cases).
CourtU.S. District Court — District of Massachusetts

Joseph Schneider and Schneider, Ganak & Reilly, all of Boston, Mass., for plaintiffs.

Louis C. Doyle and Badger, Pratt, Doyle & Badger, specially, all of Boston, Mass., for defendant.

BREWSTER, District Judge.

The defendant in the above-entitled actions has appeared specially for the purpose of filing motions to dismiss, all based upon the alleged insufficiency of service. These facts appear:

The actions are brought to recover for personal injuries growing out of an automobile accident. The defendant is a nonresident who, according to the allegations, was operating a motor vehicle over the highways of this commonwealth at the time the accident occurred.

According to the returns on the writs, service was duly made upon the registrar of motor vehicles and the fee paid, all in accordance with the provisions of chapter 344 of the Statutes of 1928.

The plaintiffs forthwith sent by registered mail copies of the process addressed to the defendant at 2 Hudson street, Hartford, Conn., and demanded return receipts. The registered letters were returned with the notation that the addressee could not be found. The plaintiffs have therefore been unable to file with the papers in the cases the return receipts. In all other respects there has been a literal compliance with the provisions of the statute.

The question presented is whether this court should now dismiss the cases inasmuch as it appears that the defendant has not received and receipted for the registered letters, which he is required to do under the statute.

It has been held that a statute providing for service upon nonresidents in automobile accident cases which did not provide for a notice to the defendant, was in violation of his rights secured to him by the Constitution of the United States. Wuchter v. Pizzutti, 276 U. S. 13, 48 S. Ct. 259, 260, 72 L. Ed. 446, 57 A. L. R. 1230. In that case Chief Justice Taft points out that the "enforced acceptance of the service of process on a state officer by the defendant would not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to advise him, by some written communication, so as to make it reasonably probable that he will receive actual notice. Otherwise, where the service of summons is limited to a service on the secretary of state or some officer of the state, without more, it will be entirely possible for a person injured to sue any nonresident he chooses, and through service upon the state official obtain a default judgment against a nonresident who has never been in the state, who had nothing to do with the accident, or whose automobile having been in the state has never injured anybody. A provision of law for service that leaves open such a clear opportunity for the commission of fraud (Heinemann v. Pier, 110 Wis. 185, 85 N. W. 646) or injustice is not a reasonable provision, and in the case supposed would certainly be depriving a defendant of...

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11 cases
  • Wise v. Herzog
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 15, 1940
    ...573, 577, 189 A. 537, 538; Syracuse Trust Co. v. Keller, 5 W.W.Harr. 304, 35 Del. 304, 316, 317, 165 A. 327, 331-332; Smyrnios v. Weintraub, D.C.Mass., 3 F.Supp. 439. See also, Ex parte Crenshaw, 15 Pet. 119, 10 L.Ed. 28 Carr, Work of District of Columbia Small-Claims Court, 49 Monthly Labo......
  • Nickerson v. Fales
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 8, 1961
    ...before jurisdiction over a nonresident defendant can attach. Service on the registrar, without more, is not enough. See Smyrnios v. Weintraub, D.C.D.Mass., 3 F.Supp. 439; Webb Packing Co. v. Harmon, Super.Ct.Del., 9 W.W.Harr. 22, 196 A. 158; McLean Trucking Co. v. Stover, Super.Ct.Del., 8 T......
  • Bucholz v. Hutton
    • United States
    • U.S. District Court — District of Montana
    • July 8, 1957
    ...really made necessary actual personal service to be evidenced by the written admission of the defendant." See also Smyrnios v. Weintraub, D.C., 3 F.Supp. 439. In Weisfeld v. Superior Court, 110 Cal.App.2d 148, 1952, 242 P.2d 29, the notice of process and copy of summons and complaint were s......
  • Postal Ben. Ins. Co. v. Johnson
    • United States
    • Arizona Supreme Court
    • January 7, 1946
    ...are the cases of Knapp v. Bullock Tractor Co., D.C., 242 F. 543; King Tonopah Mining Company v. Lynch, D.C., 232 F. 485; Smyrnios v. Weintraub, D.C., 3 F.Supp. 439; State ex rel. Quincy, O. & K. C. R. Co. v. 126 Mo.App. 544, 104 S.W. 1146; Poeggler v. Supreme Council of Catholic Mut. Ben. A......
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