Tarczynski v. Chicago, M. St. P. & P. R. R.

• Decision Date: 04 March 1952
• Parties: TARCZYNSKI, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC R. R. et al.
• Court: Wisconsin Supreme Court

Page 396

52 N.W.2d 396

261 Wis. 149

TARCZYNSKI, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC R. R. et al.

Supreme Court of Wisconsin.

March 4, 1952.

Milton M. Blumenthal, Chicago, Ill., Henry C. Friend, Harry S. Sicula, Milwaukee, for appellant.

Kenney, Korf & Pfeil, Elkhorn, for respondents.

FRITZ, Chief Justice.

The plaintiff, Victoria Tarczynski, commenced an action in the circuit court for Walworth county against John Czapiga, a resident of Illinois, and other defendants, to recover damages sustained by her for the wrongful death of her husband, which was caused by Czapiga's negligent operation of his automobile on a Wisconsin highway while her husband was a passenger in Czapiga's automobile. Service of the summons and complaint upon Czapiga, as a nonresident user of the Wisconsin highway, was made upon the Wisconsin Commissioner of the Motor Vehicle Department, pursuant to sec. 85.05(3), Stats.; and in compliance therewith copies of the summons and the complaint were duly mailed by said Commissioner and received by Czapiga on January 15, 1950. On his behalf, Thadeus C. Toudor, an attorney in Chicago, on January 30, 1950, in a telephone conversation with the plaintiff's attorneys in Milwaukee, obtained an extension of two weeks for time to file an answer on behalf of Czapiga; that extension expired February 13, 1950; and Toudor never replied nor appeared in subsequent proceedings.

Czapiga died on February 5, 1950, and on February 8, 1950, Bruno Snarski, a resident of Cook county, Illinois, was appointed administrator of Czapiga's estate, by the probate court of that county. Thereupon plaintiff sought to revive the above stated action against said administrator by filing with the clerk of the circuit court for Walworth county, an original petition for the revival of said action in accordance with sec. 269.23, Stats.; and plaintiff served notice of the filing of said petition on the Wisconsin Commissioner of the Motor Vehicle Department pursuant to sec. 85.05(3), Stats.; and by registered mail served upon said nonresident administrator a copy of said petition; and then served notice of said service and the filing thereof on the Commissioner pursuant to sec. 85.05(3), Stats. The administrator, Bruno Snarski, then appeared specially in the Walworth county circuit court and moved that the service of the petition for revival of said action and the notice in connection therewith be set aside and vacated upon the grounds that he was not a resident of Wisconsin and was not an administrator appointed by a Wisconsin court; that he was an administrator appointed by the probate court of Cook county, Illinois; that at the time of Czapiga's death he was not a resident of Wisconsin and did not then and does not now own any property in said state and said administrator does not have in his possession or control any property belonging to Czapiga which is in said state; that the Wisconsin court can have no jurisdiction over a foreign administrator appointed by an Illinois court; and that the entry or enforcement of a judgment of the Wisconsin circuit court in the action against said administrator would deprive him of property rights contrary to the Fourteenth Amendment of the United States Constitution. After a hearing pursuant to Bruno Snarski's petition the court ordered that 'the pretended service of the petition for revival and the notice and order in connection therewith be set aside and vacated.' Plaintiff appealed from the order.

In the case at bar there are applicable the provisions in sec. 85.05(3), Stats.1949, which, as amended subsequent to the decision in State ex rel. Ledin v. Davidson, 216 Wis. 216, 256 N.W. 718, 96 A.L.R. 589, provides: 'The use and operation by a nonresident of a motor vehicle over the highways of Wisconsin shall be deemed an irrevocable appointment binding upon his executor, administrator or personal representative by such nonresident of the commissioner of the motor vehicle department to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him, or his executor, administrator or personal representative, 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, or his executor, administrator or personal representative, which is so served shall be of the same legal force and validity as if served on him personally, or his executor, administrator or personal representative. Service of such process shall be made by serving a copy upon the commissioner of the motor vehicle department or by filing such copy in his office, together with a fee of $2, and such service shall be sufficient service upon the said non-resident, or his executor, administrator or personal representative; provided, that notice of such service and a copy of the process are within 10 days thereafter sent by mail by the plaintiff to the defendant, or his executor, administrator or personal representative, at his last known address, and that the plaintiff's affidavit of compliance herewith is appended to the summons. * * *'

The words 'process' or 'processes' as used in sec. 85.05(3), Stats., were obviously intended to mean the means of subjecting a party to the jurisdiction of a court. As stated in respect to the word 'process'; 'It is frequently used to designate a means, by writ or otherwise, of acquiring jurisdiction of defendant or his property, or of bringing defendant into, or compelling him to appear in court to answer.' 50 C.J., Process, par. 1, p. 442, 72 C.J.S., Process § 1. The language of sec. 85.05(3), Stats., discloses that the word 'process' as used therein was not limited to the meaning of process as a writ issued by the court under its seal, for it provides that a plaintiff's affidavit of compliance with the requirements of service be appended to the summons. In Sorenson v. Stowers, 251 Wis. 398, 29 N.W.2d 512, 513, the court stated:

'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. * * *' The broader meaning of the word 'process' includes not only a summons, but also whatever steps may be required by statute to institute a special proceeding. Thus, for example, a proceeding to compel the secretary of a corporation to issue a stock certificate can be commenced by affidavit and order to show cause, which are not issued under a seal of the court. Sec. 183.24, Stats. Nonetheless the secretary having once been served is as much subject to the jurisdiction of the court as a party who has been served with a summons. Schwab v. Smith, 143 Wis. 427, 128 N.W. 78. Likewise sec. 269.23, Stats., which provides for proceedings to revive an action, calls for a petition and notice with twenty days to answer. And a circuit court summons, although part of the process system, is but a notice of a proposed action and differs in nature and effect from a writ procured from a court. As stated in Westport Tp. v. City of Madison, 247 Wis. 326, 328, 19 N.W.2d 309, 311: 'Our summons, while part of the process system, is but a notice of a proposed action and differs in nature and effect from a writ procured from a court.'

Manifestly by said provisions in sec. 85.05(3), Stats., it was the intention and purpose that by a nonresident's use and operation of a motor vehicle on Wisconsin highways, there was created an irrevocable appointment of the commissioner of the motor vehicle department, which is binding on the nonresident or his executor, administrator, or personal representative; and that such service of the summons and complaint on said commissioner shall be then sufficient, 'provided, that notice of such service and a copy of the process are within 10 days thereafter sent by mail by the plaintiff to the defendant, or his executor, administrator or personal representative, at his last known address, and that the plaintiff's affidavit of compliance herewith is appended to the summons' as prescribed in sec. 85.05(3), Stats.

In 1932, said statute provided for service of a summons on a nonresident causing personal injury while using the state's highways by delivery of the summons to the Wisconsin Secretary of State; and in State ex rel. Rush v. Circuit Court, 209 Wis. 246, 244 N.W. 766, 767, this court not only held the statute constitutional under the due process of law section of the United States...