This is аn appeal from on order of the trial court denying a motion to dismiss the above action agаinst defendant Garman Braland.
The following facts are taken from the complaint and the affidavits submitted in suрport of and in opposition to the motion. Plaintiff is a resident of Minnesota. Defendant Garman Bralаnd is a resident of Iowa. The action is based upon a collision between an automobile owned by Garman Braland and driven by his wife, defendant Beth F. Braland, and an automobile owned and driven by plaintiff. The cоllision occurred in the State of Iowa.
Defendant Garman Braland is employed by Interstate Power Company in its maintenance department. The village of Emmons is located partly in the State of Iowа and partly in the State of Minnesota. Part of Braland’s duties consist of reading meters in the village of Em-mons, both in the State of Iowa and in the State of Minnesota. On October 18, 1962, Braland was in the village of Emmons reading meters. He stopped for lunch in the side of the village located within the State of Minnesota, and, while there, a summons in this action was handed to him. The process server touched him with the summons and then laid it on the fеnder of an automobile near by. Braland refused to pick it up.
The motion is based on the claim that Brаland being a resident of the State of Iowa, and the collision upon which the action rests having occurred in the State of Iowa, he was not amenable to service in the State of Minnesota and thаt no service actually was made upon him. He relies upon International Shoe Co. v. Washington,
1. The above cases are not in point. This case involves service on an individual defеndant within the State of Minnesota of a summons in a transitory cause of action. The cases relied upon by defendant involve the amenability of a foreign defendant to jurisdiction in personam by substituted servicе. In the leading case of International Shoe Co. v. Washington,
“Historically the jurisdiction of courts to render judgment in per-sonam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff,95 U. S. 714 , 733. But now that the capias ad respondеndum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justiсe.’ ” (Italics supplied.)
In Pennoyer v. Neff,
“* * * To give such proceedings any validity, therе must be a tribunal competent by its constitution — that is, by the law of its creation — to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance.”
Where the defendant is present within the state, except when exempt from service, 1 and is personally served, the court acquires juris *484 diction in personam rеgardless of the fact that he is a nonresident.
2. This leaves for determination only the question whether defendant Braland was adequately served. Where the defendant is found within the State of Minnesota and actually served here, the length of time during which he is present in the state is inconsequential. Rule 4.03, Rules of Civil Procedurе, provides:
“Service of summons within the state shall be made as follows:
“(a) Upon an individual by delivering a copy to him personally * * *."
The only question involved here is whether a copy of the summons was delivered tо Braland. We have not had occasion to consider the question whether service is made when thе defendant refuses to accept it, but it is generally held that if the process server and the defendant are within speaking distance of each other, and such action is taken as to convince a reasonable person that personal service is being attempted, service cannot bе avoided by physically refusing to accept the summons. 2
Here, defendant and the process servеr were in close proximity to each other. Defendant was touched with the summons, and it was laid in a plаce where it was easily accessible to him. His refusal to pick it up or to accept it did not prevent the service from being completed. We think, under the circumstances, that it must be held that defendant was adequately served.
3. Inasmuch as there is no merit to the position taken by defendant, it must be held that the appeal here is frivolous. We have frequently held that frivolous appeals will be dismissed. 3 It follows thаt the appeal should be and is hereby dismissed.
*485 We express no opinion as to whether the two causes of action were properly joined. We hold only that the court acquired jurisdiction in personam over defendant Braland by virtue of personal service upon him within the State of Minnesota.
Appeal dismissed.
Notes
See, 15 Dunnell, Dig. (3 ed.) § 7809.
See, Kurtz v. Oremland, 29 N. J. Super. 585, 103 A. (2d) 53; Schenkman v. Schenkman,
Thompson v. Chicago & N. W. Ry. Co.