ROBERT W. ALLEN, Pеtitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; IRVING BROMBERG et al., Real Parties in Interest.
L. A. No. 22684
In Bank
July 28, 1953
41 Cal.2d 306
The appeal is dismissed.
Gibson, C. J., Edmonds, J., Carter, J., Traynor, J., and Spence, J., concurred.
No Appearance for Respondent.
Arthur Wasserman and Engelhardt, Campbell & Singer for Real Parties in Interest.
SPENCE, J.—Petitioner seeks a writ of prohibition to restrain the Superior Court of Los Angeles County from taking any further proceedings in an action filed against him by Irving and Jeanette Bromberg. The determinative question is whether the court acquired in personam jurisdiction over petitioner by virtue of service of process on him without the state. Consideration of our statutory provisions and settled legal principles precludes petitioner from obtaining the relief sought.
The main action is one for damages arising out of an automobile collision which occurred in this state on November 1, 1947. The complaint was filed in the respondent court and summons was issued on July 12, 1948. A second alias summons was issued on March 25, 1952. Pursuant to affidavit by plaintiff Irving Bromberg, an order for publicаtion of summons was made on April 29, 1952. The order states that it appeared to the court that “defendant [petitioner herein] resides out of California and cannot after due diligence be found within State of California” and that he resides in Oregon. On May 3, 1952, petitioner was served personаlly with summons and complaint in Oregon.
On May 29, 1952, petitioner appeared specially in the action by filing a notice of motion (1) to quash the order for publication of summons on the ground that it was in excess of the power of the court and (2) to quash the service of summons and complaint оn the ground that the court had not acquired jurisdiction of him because the action was in personam. In support of his motion petitioner filed an affidavit stating that he was a resident of California at the time of the accident,
As a preliminary point petitioner argues that the order for рublication of summons rests on an insufficient affidavit and is therefore void. (In re Behymer, 130 Cal.App. 200, 202 [19 P.2d 829].) While the affidavit is a lengthy recital of extended efforts made to effect service on petitioner for over three years and includes considerable hearsay (Narum v. Cheatham, 127 Cal.App. 505, 508 [15 P.2d 1106]), it further contains statements clearly and direсtly establishing that petitioner was residing in Portland, Oregon, at the time application was made for the order. Accordingly, the affidavit satisfies the requirements of section 412 of the Code of Civil Procedure. (Porter v. Superior Court, 30 Cal.App. 608, 611 [159 P. 222].)
There now remains the principal question of the propriety of the trial court‘s assumption of in personam jurisdiction of petitioner. The rendition of a valid personal judgment against a defendant requires that he be a member of the class subject to its power and that he have proper notification of the action, with an opportunity to appeаr therein. (Goodrich, Conflict of Laws, 2d ed. 1938, § 69.)
As long provided by California law, a person who “resides out of the state; or has departed from the state; or cannot, after due diligence, be found within the state; or conceals himself to avoid the service of summons” is subject to service by рublication (
However, in Pennoyer v. Neff, 95 U.S. 714 [25 L.Ed. 565], it was declared that a court may not acquire jurisdiction in personam over a defendant in an action through the service of process outside the state in which the forum exists. This theory of jurisdiction “bаsed upon physical power over the body of the defendant” (8 Univ. of Chicago L.Rev. 596, 598) was applied in De La Montanya v. De La Montanya, 112 Cal. 101 [44 P. 345, 53 Am.St.Rep. 165, 32 L.R.A. 82], so as to hold that service by publication upon a California resident outside the state was insufficient to support a personal judgment, even though the defendant had left the state to avoid service. This result was thought to be required by the due process clause of the federal Constitution, and the California domiciliary status of the defendant was disregarded as a distinguishing consideration from the nonresident status of the defendant in the Pennoyer case. Neither the De La Montanya case nor any other cited as subscribing to that view (e.g., Frey & Horgan Corp. v. Superior Court, 5 Cal.2d 401, 404 [55 P.2d 203]; Merchants’ Nat. Union v. Buisseret, 15 Cal.App. 444, 446-447 [115 P. 58]; Pinon v. Pollard, 69 Cal.App.2d 129, 132-133 [158 P.2d 254]) concerned a situation where a resident or former resident of this state was personally served with process while in another state. In the De La Montanya case no consideration was given to the adеquacy of the notice, but rather the decision was based wholly on the proposition that “the state has no jurisdiction over . . . persons . . . not within its territory.” (112 Cal. 112.)
The broad language of Pennoyer v. Neff, supra, construed as prohibiting acquisition of personal jurisdiction over any person served with process outside the state has since beеn reexamined in the light of its particular factual situation. Thus in Milliken v. Meyer, 311 U.S. 457 [61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357], a personal judgment of a Wyoming court was upheld against a domiciliary who had been personally served outside the state. In so deciding the question presented, the Supreme Court of the United States observed at pages 462-463: “Domicile in the state is alone sufficient to bring an absent defendant within the reach of
The decision in the Milliken case is entirely in keeping with present-day needs affecting the power of a state to acquire jurisdiction over persons who have departed from its borders. The increasingly artificial nature of state boundаries, the expanding of metropolitan areas into two or more states, and the multiplying transportation facilities, especially through the widespread use of automobiles and trucks affecting the mobility of population, all bear significantly on the problem of process. Thе necessities of the situation are recognized in the nonresident motorist statutes (e.g.,
With this background of legislative action and judicial decisions, the Legislature enacted in 1951 sectiоn 417 of the Code of Civil Procedure. (23 Cal.Jur. § 137, p. 763; § 159, p. 782.) That section provides: “Where jurisdiction is acquired over a person who is outside of this state by publication of summons in accordance with sections 412 and 413, the court shall have the power to render a personal judgment against such рerson only if he was personally served with a copy of the summons and complaint, and was a resident of this state at the time of the commencement of the action or at the time of service.” (Stats. 1951, ch. 935, p. 2537; effective September 22, 1951.) As so based on the broad authority of seсtions 412 and 413, section 417 is manifestly designed to restrict the power of the court if a personal judgment is to be entered. Thus its operation is made dependent on defendant‘s residence within the state either at the time of commencement of the action or time of service, and оn his personal service with summons.
One main objection to service by publication on a person residing outside of the state is that due process requires fair notice. This was a consideration in Milliken v. Meyer, supra, 311 U.S. 457, upholding a personal judgment against a domiciliary based on the personal service of process while absent from the state. It was there said at page 464: “One incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the prоceedings against him.” The same principle on analogous reasoning applies where a domiciliary at the time of the commencement of the action
Petitioner questions the applicability of section 417 to the present case and argues that this section can have no retrospective operation so as to affect pending litigation. He takes the position that since section 417 did not take effect until some three years after the commencement of the action and at a time when he admittedly was not a resident of this state, it can have no significance here. But as above discussed, California at all times under sections 412 and 413 of the Code of Civil Procedure had the power to obtain in personam jurisdiction over petitioner for the purposes of this action by means of such service of process as would satisfy the requirements of due process. Then section 417, as a clarifying statute, set forth the restrictive conditions under which this state would assert in personam jurisdiction, thereby leaving no doubt that this state was conforming in this regard with “traditional notions of fair play and substantial justice . . . implicit in due process. . . .” (Milliken v. Meyer, supra, p. 463.) As so construed, section 417 may reasonably apply to pending as well as future litigation. In this respect it is not to be regarded as a retrоactive law, and petitioner‘s argument correlating the section with objectionable retrospective legislation effecting an impairment of vested rights (11 Am.Jur., § 368, p. 1197 et seq.) is without merit.
The alternative writ is discharged and the peremptory writ of prohibition is denied.
Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., and Traynor, J., concurred.
Such facts, as related in the main opinion, show that more than three years elapsed between the time the action was filed against petitioner (defendant in such action) and the time summons was served on him, and also that he remained a resident of California for more than three years after the action was filed. Under such circumstances, in the absence of a showing of facts suspending operation of the statute, it would seem to be the duty of the court on motion of the petitioner or of its own motion to dismiss the main action.
SPENCE
ASSOCIATE JUSTICE