Zavis v. Warren, 351.

• Decision Date: 20 November 1940
• Docket Number: No. 351.,351.
• Citation: 35 F. Supp. 689
• Parties: ZAVIS et al. v. WARREN.
• Court: U.S. District Court — Eastern District of Wisconsin

35 F. Supp. 689

ZAVIS et al. v. WARREN.

No. 351.

District Court, E. D. Wisconsin.

November 20, 1940.

Maurice M. Spracker, of Milwaukee, Wis., for plaintiffs.

Quarles, Spence & Quarles, of Milwaukee, Wis., for defendant.

DUFFY, District Judge.

This action is the outgrowth of an automobile collision which occurred within the State of Wisconsin on August 14, 1938. The defendant is a nonresident. At the date of the accident § 85.05(3) of the Statutes of 1937 was in force. It provided as follows: "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 Wisconsin Legislature, by Chapter 410 of the Laws of 1939 which became effective September 1, 1939, created a Motor Vehicle Department. The new law provided that all of the duties and functions theretofore vested in the Secretary of State by virtue of Chapter 85.05 be transferred to the Motor Vehicle Department. Section 85.05(3), as it appeared in the Wisconsin Statutes at the time this action was commenced, is exactly the same as the old statute except that the words "commissioner of the motor vehicle department" appear in place of the words "secretary of state."

This action was started on July 24, 1940, by serving a copy of the summons and complaint upon the Commissioner, Motor Vehicle Department, and the payment of the statutory fee of $2. The defendant has made a special appearance and moved that the service of the summons and complaint be vacated.

The provision of the 1937 statute that a notice of such...