State ex rel. Cronkhite v. Belden

• Decision Date: 12 January 1927
• Citation: 193 Wis. 145,211 N.W. 916
• Parties: STATE EX REL. CRONKHITE v. BELDEN, CIRCUIT JUDGE.
• Court: Wisconsin Supreme Court

193 Wis. 145

211 N.W. 916

STATE EX REL. CRONKHITE

v.BELDEN, CIRCUIT JUDGE.

Supreme Court of Wisconsin.

Jan. 12, 1927.

Eschweiler, J., dissenting.

Original action in prohibition by the State, on the relation of A. C. Cronkhite, to restrain E. B. Belden, Circuit Judge, etc., from proceeding with the trial of an action. Writ denied.

This is an original action begun in this court by petition. The petitioner, who resides in the city of Chicago, Ill., was named defendant in an action begun in the circuit court for Kenosha county, Wis., entitled Mary Julius, Plaintiff, v. A. C. Cronkhite, Defendant, and in a second action entitled Charles H. Julius, Plaintiff, v. A. C. Cronkhite, Defendant. The relief sought in the actions wherein Mary Julius and Charles H. Julius were plaintiffs was compensation for damages arising out of an automobile collision which occurred in Kenosha county, Wis., on the 21st day of June, 1925. The plaintiffs in said actions attempted to make service of the summons and complaint upon the defendant in those actions, the petitioner here, by complying with the provisions of subsection 3 of section 85.15, Wis. Stats. 1925. That statute was fully complied with, and in addition thereto the plaintiffs in the actions begun in the circuit court for Kenosha county caused copies of the summons and complaint to be served upon the defendant therein, the petitioner here, personally. On the 23d day of February, 1926, Cornelius J. Harrington, master in chancery of the superior court of Cook county, state of Illinois, issued subpœnas in each of the above-entitled actions commanding A. C. Cronkhite, the petitioner here, to appear before him on the 3d day of March, 1926, at 2 o'clock p. m., then and there to be examined adversely at the instance of the plaintiffs in said actions. It further appears that at the time and place named in the subpœnas, A. C. Cronkhite appeared in person, accompanied by two attorneys, Eugene P. Kealy, Esq., of the Chicago bar, and Vilas H. Whaley, Esq., of the Racine bar. No appearance was entered for Mr. Whaley. He requested that Mr. Kealy be entered as appearing for the defendant, A. C. Cronkhite. The defendant entered an objection to the jurisdiction of the court, but continued his appearance, made objections to questions put to the witnesses, moved to strike out answers, and at the close of the deposition entered into a stipulation waiving the signature of the witness to the deposition.

On March 13, 1926, an order to show cause was issued at the instance of A. C. Cronkhite by a court commissioner of Kenosha county to show cause on the 15th day of March, 1926, why an order should not be entered setting aside and vacating the attempted service of the summons and complaint in each of the actions hereinbefore referred to. Said motion was brought on for a hearing and the motion was denied, the trial court being of the opinion that the service of the summons and complaint in each action was valid.

The relief sought in the action here is, that a writ of prohibition issue from this court, directed to the circuit court of Kenosha county, restraining that court from proceeding further in each of said actions. Other material facts will be stated in the opinion.Whaley, Erikson & Paulsen, of Racine, and Wheeler P. Bloodgood, of Milwaukee (Albert K. Stebbins, of Milwaukee, of counsel), for petitioner.

Buckmaster & Hammond, of Kenosha, for defendant.

Herman L. Ekern, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., amicus curiæ.

ROSENBERRY, J.

The primary question raised in this case is the validity of section 85.15, subsec. (3), Statutes of 1925. That section provides:

“The use and operation by a nonresident of a motor vehicle over the highways of Wisconsin shall be deemed an appointment by such nonresident of the secretary of state to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him, growing out of such use or operation resulting in damage or loss to person or property, and said use or operation shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally. Service of such process shall be made by serving a copy upon the secretary of state or by filing such copy in his office, together with a fee of two dollars, and such service shall be sufficient service upon the said nonresident; provided, that notice of such service and a copy of the process are within ten days thereafter sent by mail by the plaintiff to the defendant, at his last known address, and that the plaintiff's affidavit of compliance herewith is appended to the summons. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action, not exceeding ninety days from the date of the filing of the action in such court. The fee of two dollars paid by the plaintiff to the secretary of state at the time of the service shall be taxed in his costs if he prevails in the suit. The secretary of state shall keep a record of all such processes which shall show the day and hour of service.”

The statute is assailed upon the ground that it violates the doctrine laid down in Pennoyer v. Neff (1877) 95 U. S. 714, 24 L. Ed. 565, because it enables a resident of the state of Wisconsin to secure a valid personal service upon a person residing and remaining beyond the territorial limits of the state of Wisconsin; second, that if it be held valid in other respects, it is discriminatory in that it denies to nonresidents upon whom service has been made under the statute the equal protection of the laws in that it limits the time during which continuances may be granted to 90 days from the date of the filing of the action in the court in which it is begun, whereas resident litigants are not so limited, their right to a continuance resting solely in the discretion of the court.

[1][2] We shall dispose of the second proposition first. It seems quite clear that the provision of the statute limiting continuance to 90 days cannot stand. It is discriminatory and denies to nonresidents rights and privileges enjoyed by residents under the same or similar circumstances upon no other ground than that they are nonresidents. The courts of Wisconsin having once obtained jurisdiction of the person of a nonresident defendant, we perceive no reason why his right to a continuance should rest upon different grounds than the rights of residents. It must be held invalid. Ballard v. Hunter (1907) 204 U. S. 241, 27 S. Ct. 261, 51 L. Ed. 461. However, if that clause be stricken out, what remains makes a consistent, workable scheme for carrying out the principal legislative purpose. The 90-day provision cannot be considered as an inducement for the enactment of the remainder of the statute, and the provision must be held separable and the remainder of the act may stand provided it is in other respects a valid enactment. Lynch v. The Economy, 27 Wis. 69;State ex rel. Williams v. Sawyer County, 140 Wis. 634, 123 N. W. 248.

It is argued with much skill and persuasiveness that the statute is in violation of constitutional limitations as laid down in Pennoyer v. Neff, supra. It is there said:

“Where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a nonresident is ineffectual for any purpose. Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the state where the tribunal sits cannot create any greater obligation upon the nonresident to appear. Process sent to him out of the state, and process published within it, are equally unavailing in proceedings to establish his personal liability.”

It is argued that this proposition is further supported by Flexner v. Farson (1919) 248 U. S. 289, 39 S. Ct. 97, 63 L. Ed. 250. In that case a personal judgment was rendered in Kentucky against two nonresident partners doing business in that state. Service of process was not made upon them personally, but upon an agent in charge of their business in Kentucky, in accordance with the terms of a statute permitting such service. It was argued by counsel for the plaintiff in that case that defendants by voluntarily coming within the state to do business consented to be bound by service made in accordance with the provisions of the Kentucky statutes. The court said:

“It is argued that the pleas tacitly admit that Washington Flexner was agent of the firms at the time of the transaction sued upon in Kentucky, and the Kentucky statute is construed as purporting to make him agent to receive service in suits arising out of the business done in that state. On this construction it is said that the defendants, by doing business in the state, consented to be bound by the service prescribed. The analogy of suits against insurance companies based upon such service is invoked. Mutual Reserve Fund Life Asso. v. Phelps, 190 U. S. 147, 23 S. Ct. Rep. 707, 47 L. Ed. 987. But the consent that is said to be implied in such cases is a mere fiction, founded upon the accepted doctrine that the states could exclude foreign corporations altogether, and therefore could establish this obligation as a condition to letting them in. Lafayette Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451;Pennsylvania F. Ins. Co. v. Gold Issue Min. & Mill Co., 243 U. S. 93, 96, 37 S. Ct. Rep. 344, 61 L. Ed. 610, 616. The state had no power to exclude the defendants, and on that ground, without going farther, the Supreme Court of Illinois rightly held that the analogy failed, and that the Kentucky judgment was void.” See, also, Baker v. Baker, 242 U. S. 394, 37 S....