State ex rel. Thompson v. District Court of Fourth Judicial Dist. in and for Missoula County

Decision Date22 May 1939
Docket Number7965.
Citation91 P.2d 422,108 Mont. 362
PartiesSTATE ex rel. THOMPSON v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR MISSOULA COUNTY et al.
CourtMontana Supreme Court

Proceeding by the State of Montana, on the relation of Perry Thompson guardian ad litem for Stanley Thompson, a minor, against the District Court of the Fourth Judicial District in and for the County of Missoula, and the Honorable Ralph L. Arnold, a Judge thereof, for a writ of supervisory control or other appropriate writ to reverse the action taken by the district court on a motion to quash substituted service of process on Stanley Thompson in an automobile accident case.

Writ denied and proceeding dismissed.

Murphy & Whitlock, of Missoula, for relator.

E. C Mulroney, of Missoula, for respondent.

STEWART Justice.

Pursuant to the provisions of Chapter 10, Session Laws of 1937 substituted service of process was obtained on Stanley Thompson, one of the defendants in a cause of action arising out of an automobile accident. The district court denied a motion to quash such service, and relator, father and guardian ad litem for Stanley Thompson, a minor, seeks by writ of supervisory control or other appropriate writ to reverse the action taken by the district court on that motion.

The accident occurred in Missoula county December 4, 1938, and defendant Stanley Thompson left the state on December 23d of that year for Arizona--apparently for reasons other than because of the accident. An action for damages was instituted in the district court February 9, 1939, and the substituted service was obtained in the manner provided by Chapter 10 supra. Stanley Thompson was a resident of Montana at the time of the accident.

The main question for determination is whether section 3 of the Act applies to a motorist who was at the time of the accident a resident of the state, but who subsequently, before the institution of an action against him, removed from the state. If the answer to this question is in the affirmative, then quaere: Is Chapter 10 unconstitutional as unwarranted class legislation and in violation of the due process clauses of the state and federal Constitutions? The Act clearly applies to nonresident owners and operators of motor vehicles, and we have recently upheld the Act as constitutional in that regard in the case of State ex rel. Charette, v. District Court, 107 Mont. 489, 86 P.2d 750.

Section 3 of the Act furnishes the grounds for the controversial issue suggested above, as the main question for determination. It provides as follows: "The operation by any person, by himself or his agent, of any motor vehicle, whether registered or unregistered, and with or without a license to operate, on any public way in this State, shall be deemed equivalent to an appointment by such person of the secretary of state, or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him, growing out of an accident or collision in which he or his agent may be involved while operating a motor vehicle on any public way in this State, and such operation shall be a signification of an agreement by such person that any such process against him which is served upon the secretary of state or his successor in office shall be of the same force and validity as if served upon him personally. This section shall not apply in case of any cause of action, for the service of process in which provision is made by section two, nor shall it authorize service of process upon any person who may with due diligence be found and personally served with process within the State of Montana."

It is plain that section 3 expressly eliminates from consideration service of summons based on any cause of action mentioned in section 2, which deals exclusively with nonresidents. Section 3 is also particular in its exclusion of substituted process on "any person who may with due diligence be found and personally served with process within the State of Montana." Residents domiciled in the state are clearly intended to be served personally, because in the normal course of events such a person can with reasonable diligence be found.

Section 3, having excluded nonresidents as being covered by section 2, and having made it requisite that persons who can be found with due diligence be served personally within the state, what class of motorists is then left to be covered by the Act? To state the exceptions is to answer the question. Naturally a person involved in an automobile accident who subsequent thereto, but prior to the institution of an action against him, removes from the state to live somewhere else, though he be a resident of the state at the time of the accident, is under such circumstances a person who cannot with due diligence be found and served with process in the state. The language of the statute is too plain to mean anything else.

It is ingeniously suggested by counsel for relator that section 2 of the Act covers only nonresident operators of motor vehicles, and that, since by section 1 the privilege of using the highways of the state and the acceptance of the provisions of the Act as a condition precedent thereto is confined to "non-resident owners and operators of motor vehicles," it is logical to suppose that the legislature intended that section 3 should...

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