Webb Packing Co. v. Harmon,

• Court: Delaware Superior Court
• Writing for the Court: LAYTON, C. J.
• Citation: Webb Packing Co. v. Harmon,, 196 A. 158, 39 Del. 22 (Del. Super. 1937)
• Decision Date: 22 December 1937
• Parties: WEBB PACKING COMPANY v. FRED T. HARMON, et al

196 A. 158

39 Del. 22

WEBB PACKING COMPANY v. FRED T. HARMON, et al

Superior Court of Delaware, New Castle County

December 22, 1937

[Copyrighted Material Omitted]

Superior Court for New Castle County, No. 158, September Term, 1934.

Special appearance by defendants to question the validity of process.

The defendants were residents of the State of Virginia. Their motor vehicle was not registered under Delaware laws. The plaintiff, a Maryland Corporation, brought suit to the September Term, 1934, to recover damages resulting from a collision in this State between a motor vehicle of the plaintiff and the defendants' motor vehicle. Service of process was attempted under Section 4590, Rev. Code 1935 (Chapter 225, Vol. 35, Del. Laws). The plaintiff obtained judgment for want of appearance, and damages were ascertained by inquisition.

The statute, under which service of process on the defendants was attempted is as follows:

"Any non-resident owner, operator or driver of any motor vehicle not registered under the laws of the State of Delaware providing for the registration of motor vehicles, who shall accept the privilege extended by law to non-residents of this State to operate or drive such motor vehicles on the public streets, roads, turnpikes or highways of this State by operating or driving such motor vehicle or by having the same operated or driven on any public street, road, turnpike or highway of this State shall by such acceptance of said privilege be deemed thereby to have appointed and constituted the Secretary of State of the State of Delaware, his, her, its or their agent for the acceptance of legal process in any civil action against such non-resident owner, operator or driver arising or growing out of any accident or collision occurring within this State in which such motor vehicle, operated as aforesaid, is involved; and said acceptance shall be a signification of the agreement of such non-resident that any such process when so served, as aforesaid, shall be of the same legal force and validity as if served upon such non-resident personally within this State.

"Service of the legal process provided for in this Section, with a fee of two dollars, shall be made upon the Secretary of State of the State of Delaware in the same manner as is now or may be thereafter provided by law for service or writs of summons, and when so made shall be as effectual to all intents and purposes as if made personally upon such non-resident within this State; provided, that a copy of the process with notice of such service, and that under the provisions of this Section it shall be as effectual to all intents and purposes as if it had been made upon such non-resident personally within this State, are forthwith sent by registered mail by the plaintiff in said civil action to said non-resident defendant therein, and the defendant's return receipt and the plaintiff's affidavit of the defendant's non-residence and of the sending of the copy of the process with the notice aforesaid are filed in said action with the declaration. The Court in which said action is pending may order such continuances as may be necessary to afford the said defendant therein reasonable opportunity to defend the action."

At the March Term, 1937, the defendants petitioned to have the judgment vacated on the ground that the statute had not been complied with, and, in Webb Packing Co. v. Harmon, 8 W. W. Harr. (38 Del.) 476, 193 A. 596, the judgment was vacated on the ground that no notice was sent to the defendants that service of the writ on the Secretary of State was as effectual to all intents and purposes as if it had been served on the defendants personally within this State.

The decision was rendered on June 9, 1937, and thereafter, in August, a new copy of the writ was obtained and it with proper notice was sent by the plaintiff to the defendants. A new declaration with the defendant's return receipt and the plaintiff's affidavit was filed at the September Term, 1937.

Leave was granted to the defendants to enter a special appearance, and rules were issued directing the plaintiff to show cause why the return of service on the Secretary of State should not be vacated and the writ quashed, and why an order should not be entered that the defendants be not required to plead to the declaration.

The proceeding is terminated and quashed.

John W. Huxley, Jr., for plaintiff.

William S. Potter (of Ward and Gray) for defendants.

LAYTON, C. J., RODNEY and SPEAKMAN, J. J., sitting.

OPINION

LAYTON, C. J.

The cause of action arose from an automobile collision occurring in this State. The plaintiff sought to bring the non-resident defendants under the jurisdiction of the Court by service of process under the statute. The defendants contend that the word, "forthwith," as used in the statute, fairly construed, means that a copy of the writ with notice of its service on the Secretary of State, and that such service is as effectual as if made on the defendant personally within this State, should be sent the defendant against whom jurisdiction is attempted, before the return day of the writ; and that, as the suit was brought to the September Term, 1934, the sending, in August, 1937, after the vacation of the judgment in June, notice of the effect of the statute was not "forthwith," within the meaning of the statute. Wherefore, the writ should be quashed, and they should not be required to plead to the declaration.

The plaintiff's argument is that the writ of summons was properly issued, served and returned; that the failure to inform the defendant, by the notice sent to them in 1934, of the effect of the service of the writ on the Secretary of State was a mere informality, not affecting the validity of the writ, and, consequently, not terminating the action; and that sending a copy of the writ with notice of its service and of the effect of service in August, 1937, after the vacation of the judgment in June, constituted a sending "forthwith," in that it was sent in reasonable time in the circumstances of the case.

The question involves an extraordinary process. As commonly used in law, process signifies the means of asserting jurisdiction against a defendant by compelling him to appear in Court and to answer a complaint made against him. It need not necessarily be a subpoena, or other writ. It may be an order or notice, for the State has power to prescribe a reasonable means of notifying a defendant in order to subject him to the jurisdiction of its Courts.

Judicial process is indispensable to jurisdiction. The general rule, apart from a voluntary appearance, is that process must be served personally on the person to be affected thereby; and in the absence of a statute authorizing a vicarious method, service must be personal. But, what service of process or notice shall be deemed sufficient is, within limitations, to be determined by the legislative power of the State in which the proceeding is instituted.

Notice sent outside the State to a non-resident is unavailing to give jurisdiction against him personally for a money recovery. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct 632, 71 L.Ed. 1091; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. There...