State ex rel. Charette v. District Court of Second Judicial Dist. in and for Silver Bow County

• Decision Date: 16 January 1939
• Docket Number: 7918.
• Citation: 86 P.2d 750,107 Mont. 489
• Parties: STATE ex rel. CHARETTE v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al.
• Court: Montana Supreme Court

86 P.2d 750

107 Mont. 489

STATE ex rel. CHARETTE v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al.

No. 7918.

Supreme Court of Montana

January 16, 1939

Rehearing Denied Feb. 4, 1939.

Proceeding by the State of Montana, on the relation of Edward Charette against the District Court of the Second Judicial District of the State of Montana, in and for the County of Silver Bow and Honorable Jeremiah J. Lynch, a Judge thereof, for a writ of supervisory control.

Writ denied and proceeding dismissed.

Geo. W Howard, of Butte, for relator.

W. B. Frame, John K. Claxton, and H. A. Tyvand, all of Butte, for respondents.

ERICKSON Justice.

This matter comes before the court on an application for a writ of supervisory control, directed to the district court of the Second Judicial District. The facts from which the application arises briefly stated are these:

The relator here, defendant below, was sued for injuries arising out of the operation of an automobile by defendant on a highway of the state and sustained by one James Currie, a minor, who brought suit by his guardian ad litem, John Currie. From the briefs it appears that the relator is a non-resident of the State of Montana, and that service of summons was had on him under Chapter 10, Laws of 1937. A copy of the summons together with the fee provided in that chapter were left with the Secretary of State, and he mailed a copy of the summons to the relator as provided therein. A copy of the summons together with the notice of service on the Secretary of State were sent by registered mail to the last-known address of the relator, according to the plaintiff's return. The registry receipt card was returned to the plaintiff endorsed "Refused" and "Returned to writer unclaimed." The relator appeared specially in the court below and moved to quash and set aside the service made upon him. Subsequently he made a supplemental special appearance by motion to quash the service. The motion and supplemental motion to quash were set down for hearing, and upon such hearing both motions were denied.

The pertinent parts of Chapter 10, Laws of 1937, are sections 1, 2 and 4:

"Section 1. Subject to a compliance with the motor vehicle laws of this State and the acceptance of the provisions of this act, non-resident owners and operators of motor vehicles hereby are granted the privilege of using the highways, roads and streets of this State and its political subdivisions, and the use of such highways, roads and streets shall be deemed and construed to be an acceptance of the provisions of this act.

Section 2. The acceptance by a nonresident of the rights and privileges conferred by the laws of this State to use the highways, roads and streets of the state and its political subdivisions as evidenced by his operating a motor vehicle thereon shall be deemed equivalent to and construed to be an appointment by such non-resident of the secretary of state of the State of Montana to be his true and lawful attorney upon whom may be served all lawful summons and processes against him growing out of any accident, collision, or liability in which said non-resident may be involved while operating a motor vehicle upon such highways, roads or streets, and said acceptance or operation shall be a signification of his agreement that any summons or process against him which is so served shall be of the same legal force and validity as if served on him personally within the State of Montana."

"Section 4. Service of such summons or process under sections two and three shall be made by leaving a copy thereof with a fee of two dollars ($2.00) 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:

Provided, further, that personal service outside of this State in accordance with the provisions of the statutes thereof relating to a personal service of summons outside of this State shall relieve a plaintiff from mailing a copy of the summons or process by registered mail as hereinbefore provided. The secretary of state shall forthwith send one of such copies by mail, postage prepaid, addressed to the defendant at his address if known to the secretary of state. The court in which the action is brought may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action."

We find no merit in relator's contention that the plaintiff failed to comply with the provisions of this chapter because the registry receipt filed does not bear the signature of the relator. The receipt does show that the letter containing the notice and summons was offered to the relator and that he refused to accept delivery of it. He is not in a position to complain that plaintiff failed to comply with the requirements of the statute when the relator's own wilful act prevented plaintiff's literal compliance therewith.

Nor do we see any merit in relator's argument that Chapter 10 is so uncertain and ambiguous that it is unconstitutional. The procedure set out in the Act to secure service is clear and detailed, and we find no difficulty in understanding the steps required and the applicability of the statute to the particular case.

Relator argues that since Chapter 10 provides that the service by mailing may be made by the plaintiff himself, the Act is invalid. We see no merit in this contention. In the present instance the mailing was by the plaintiff's attorney, which, of course, was done pursuant to his employment as attorney for plaintiff, and the mailing is the plaintiff's act through the agency existing by reason of the attorney-client relationship.

Relator also argues that the Act is invalid because it does not call for delivery of the complaint to the defendant. We find no authority to support this position. The summons states where a copy of the complaint may be found, and by the summons defendant is put on notice; this constitutes due process in our opinion.

Relator seriously urges that Chapter 10 was repealed by Chapter 175 of the Laws of 1937. This latter chapter is an amendment of section 9111, Revised Codes. The only change in section 9111 by the amendment is contained in subsection 6 of Chapter 175, in which provision is made for service of summons on corporations whose charter or right to do business in the state has expired. Section 9111 provides a method of service of summons in a variety of situations, and after setting out the method of service in particular cases, provides in subsection 6 that in all other cases the defendant is to be served personally. This provision is carried forward in Chapter 175 as subsection 7. Chapter 175 carries the usual repealing clause. We do not believe that the legislature, by the passage of this chapter, intended to repeal Chapter 10. There was certainly no express repeal of Chapter 10 by specific reference to it, since no mention is made of the chapter in either the title or body of the Act. The repealing clause does not operate as an express repeal of Chapter 10. Courts in general, in speaking of these repealing clauses, have held that they add nothing to the repealing effect of the Act of which they are a part, as without the clause all prior conflicting laws, or parts of laws, would be repealed by implication. Their chief purpose seems to be to limit the extent of the repeal effected by the Act to those laws, or parts of laws, which are actually inconsistent with the Act. Barden v. Wells, 14 Mont. 462, 36 P. 1076; Bank of British North America v. Cahn, 79 Cal. 463, 21 P. 863; In re Clary, 149 Cal. 732, 87 P. 580; Batchelor v. Palmer, 129 Wash. 150, 224 P. 685. There is then no direct repeal.

Nor is there a repeal by implication. At the passage of Chapter 10 it and section 9111, supra, stood side...