Sorenson v. Stowers

• Decision Date: 18 November 1947
• Citation: 251 Wis. 398,29 N.W.2d 512
• Parties: SORENSON v. STOWERS et al. (two cases).
• Court: Wisconsin Supreme Court

251 Wis. 398

29 N.W.2d 512

SORENSON

v.STOWERS et al. (two cases).

Supreme Court of Wisconsin.

Nov. 18, 1947.

Appeals from orders of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Reversed.

Plaintiff and appellant La Marr Sorenson and plaintiff and appellant Pearl Sorenson commenced separate actions against Charles Stowers and Milwaukee Automobile Insurance Company, Limited, defendants and appellants, and George W. Emmert, defendant and respondent, to recover damages for personal injuries suffered by reason of a collision of cars driven by the defendants Emmert and Stowers and the Sorenson car. The collision occurred August 6, 1939, on a public highway in Milwaukee county, and action was commenced August 4, 1941. Defendant Emmert appeared specially in all proceedings in the trial court and moved to set aside and vacate the service of summons and complaint for the reason that plaintiffs failed to comply with the statute under which it was attempted to obtain the service relied upon, defendant Emmert being a non-resident of the state. The trial court, after hearing, ordered the purported service on the defendant Emmert in each action be set aside and both actions be dismissed as to him. Plaintiff La Marr Sorenson appeals from the order entered in the action in which he is plaintiff, and Pearl Sorenson appeals from the order entered in the action in which she is plaintiff, and defendants Charles Stowers and Milwaukee AutomobileInsurance Company, Limited, appeal from both orders.

An accident report was made to the Milwaukee county sheriff's department as required by law, which report gave the address of George W. Emmert as ‘Warren, Michigan,’ and a supplementary report of the officer investigating the collision gave the same information. It is undisputed that Emmert's address and residence at that time was Warren, Michigan. In the fall of 1939 he disposed of his business there and entered into business in Chicago, having business and residence addresses which were listed in the Chicago directories at all times after he moved to Chicago. His affidavit states that before leaving Warren, Michigan, in the fall of 1939, he left a forwarding address with the United States postal department, which was never countermanded or changed. Mail addressed to him at Warren, Michigan, was at times delivered to his successor in business there. During the month of April, 1941, plaintiffs' Chicago counsel wrote a letter to defendant Emmert and addressed it to him at Warren, Michigan, which letter was returned with the envelope opened, containing a slip stating ‘Opened by mistake.’ This was placed in an envelope with the name ‘George W. Emmert, Warren, Michigan’ on the back of it, which envelope was addressed to the office of the Chicago attorneys who wrote the letter to Emmert.

On or about August 2, 1941, plaintiffs' claims were placed in the hands of Milwaukee attorneys by their Chicago counsel. Suit papers were prepared and forwarded to the commissioner of motor vehicles on August 4, 1941, and copies were prepared and mailed to defendant Emmert on August 5, 1941, by registered mail, addressed to him at Warren, Michigan. The envelope containing the suit papers was returned to the senders with the stamp thereon by the Warren, Michigan, post office showing delivery was not made for the reason that delivery was refused and the further reason that the addressee had moved and left no address.

Wolfe, O'Leary & Kenney, of Milwaukee, for plaintiffs and appellants.

D. J. Regan, of Milwaukee, for defendants and appellants.

Quarles, Spence & Quarles, of Milwaukee (Edward H. Borgelt and Richard S. Gibbs, both of Milwaukee, of counsel), for respondent.

BARLOW, Justice.

The question presented is whether proper service has been made on defendant Emmert under sec. 85.05(3) Stats. It is undisputed that defendant Emmert was a non-resident. The collision from which damages are claimed occurred in Wisconsin, and service was properly made upon the commissioner of the motor vehicle department of the state of Wisconsin by filing a copy of the summons and complaint in his office, together with a fee of $2.00.

Sec. 85.05(3), Stats. after providing for service on the commissioner of the motor vehicle department, provides that notice of such service and a copy of the process shall within ten days thereafter, be sent by mail by the plaintiff to the defendant, at his last known address. Appellants contend this was complied with by mailing a notice of such service and copy of the process to the defendant Emmert at Warren, Michigan. The trial court held that appellants failed to comply with the statute by not mailing the notice of service and copy of process to respondent's Chicago address, relying on State ex rel. Cronkhite v. Belden, 1927, 193 Wis. 145, 211 N.W. 916, 920,214 N.W. 460,57 A.L.R. 1218, wherein it is said: ‘This must mean not his last address known to the plaintiff, but plaintiff is required to ascertain at his peril the last known address of the defendant as a matter of...