Opinion
Page __
__ Cal.App.2d __ 338 P.2d 465 Jack OWENS, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR THE COUNTY OF LOS ANGELES, Respondent. Jessie Thiele, Real Party in Interest. Civ. 23745. California Court of Appeals, Second District, First Division April 24, 1959Hearing Granted June 18, 1959.
[338 P.2d 466] Parker, Stanbury, Reese & McGee, Los Angeles, for petitioner.
Harold W. Kennedy, County Counsel, and Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondent.
Charles F. Legeman, Long Beach, for real party in interest.
NOURSE, Justice pro tem.
By his petition, petitioner seeks a writ of prohibition to annul an order of the respondent court denying petitioner's motion to quash the service of summons upon him in an action brought against him in the respondent court by one Thiele. Petitioner has mistaken his remedy; he should have applied for a writ of mandate pursuant to the provisions of section 416.3 of the Code of Civil Procedure, but inasmuch as the facts alleged are sufficient to invoke the jurisdiction of this court to grant that writ we may treat his petition as one for such. Simmons v. Superior Court, 96 Cal.App.2d 119, 132-133, 214 P.2d 844, 19 A.L.R.2d 288; Mash v. Superior Court, 192 Cal. 258, 259, 219 P. 742.
The facts: On August 6, 1956, one Jessie Thiele, the real party in interest respondent, was bitten by a dog owned by petitioner on the premises of petitioner in the County of Los Angeles; on the 10th of January, 1957, she commenced an action against petitioner for damages in the superior court of that county. On September 29, 1958, an order for publication of summons having been made, petitioner was personally served with process in the State of Arizona.
At the time plaintiff's alleged cause of action arose, that is, on August 5, 1956, petitioner was a domiciliary of the County of Los Angeles, State of California. In December 1956, petitioner became domiciled in the State of Arizona and ever since that [338 P.2d 467] time has been a citizen and domiciliary of that state.
The petition and the return thereto present the following questions: First, is section 417 of the Code of Civil Procedure as amended in 1957 applicable to actions pending at the time of its enactment? Second, is one who was domiciled in this state at the time a cause of action arose against him, but who was not domiciled in this state at the time of the commencement of the action, subject to the process of the courts of this state served upon him at his foreign domicile?
At the time the cause of action arose against petitioner and at the time petitioner forsook his domicile in this state and established domicile in Arizona, the courts of this state could not, under the provisions of section 417 of the Code of Civil Procedure, obtain jurisdiction over the person of one absent from the state and domiciled in another state for the power of the courts to render a personal judgment was by the express provision of that section limited to those persons who were domiciled in the state either at the time of the commencement of the action or at the time of the service of process. Code Civ.Proc. § 417, as enacted in 1951. See Stats.1951, ch. 935, p. 2537.
In 1957 section 417 of the Code of Civil Procedure was amended so as to extend the power of the courts of this state to render personal judgments against one absent from the state but who was domiciled in the state at the time the cause of action arose provided that he was personally served with process. This amendment to the statute did not become effective until after petitioner had established his domicile in Arizona. Petitioner asserts that the amendment to section 417 may not be applied retrospectively so as to give it effect as against a defendant in an action pending at the time of its enactment and that if so construed it violates sections 13 and 16 of article I of the Constitution of this state and the Fourteenth Amendment to the Constitution of the United States. This contention cannot be sustained. The amendment to section 417 does not purport to give validity to a service of summons made upon a defendant in a pending action where service was accomplished prior to the enactment of the statute; it only gives the courts jurisdiction to enter a judgment where effective service is made upon the defendant after the effective date of the statute. It therefore operates not in retrospect but prospectively. By empowering the courts of this state to render a personal judgment against one domiciled in California at the time of the commission of a tort, the statute does not contravene any of petitioner's constitutional rights inasmuch as it does not impair the obligation of any contract, create any new obligation on his part, create any cause of action against him or deprive him of any defense on the merits that he might have to the action brought by the real party in interest. It is remedial in character and as petitioner had no vested right to have the jurisdiction of the court limited as it was by section 417 at the time he left the state, his rights were not affected by the amendment. Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483, at page 486; Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, at page 1217; Casey v. Katz, 114 Cal.App.2d 391, 250 P.2d 291; Halbert v. Berlinger, 127 Cal.App.2d 6, 273 P.2d 274; Allen v. Superior Court, 41 Cal.2d 306, 259 P.2d 905.
'Residence' in section 417 is used in the sense of 'domicile.' Smith v. Smith, 45 Cal.2d 235, at pages 239-240, 288 P.2d 497.
Section 417 of the Code of Civil Procedure does not purport to make the process of the courts of this state effective outside the territorial limits of the state. Its only application is to cases where jurisdiction has been obtained pursuant to the provisions of sections 412 and 413 of the Code of Civil Procedure by an order for the publication of summons and the personal service of summons and complaint upon the defendant.
[338 P.2d 468] The question posed therefore is: Does the process of the courts of this state extend beyond its borders so as to give the courts of this state jurisdiction over the person of an absent natural person who is not domiciled in the state at the time of the commencement of the action, to the end that a personal judgment may be rendered against him on a cause of action arising out of a tort committed in this state? Before proceeding with the determination of the question posed, it is well that we state the limitations upon the scope of the question. It does not encompass the rights of this state to render a personal judgment against a foreign corporation 'doing business' in this state within the meaning of section 411, paragraph 2 of the Code of Civil Procedure as that section has been interpreted by the Supreme Court (Henry R. Jahn & Son, Inc. v. Superior Court, 49 Cal.2d 855, 323 P.2d 437), for it is evident that by the use of the words 'a person' in section 417 in connection with its reference to sections 412 and 413 of the Code of Civil Procedure the Legislature intended to include only domestic corporations and natural persons and did not intend to include foreign corporations as such corporations are not subject to service in the manner provided for by sections 412 and 413, but only in accordance with sections 6500-6504 of the Corporations Code (Code Civ.Proc. § 411, subd. 2). Nor are we concerned with actions arising out of the operation of an automobile upon the highways of this state where the defendant has, by accepting a certificate of ownership or registration of the motor vehicle involved in the accident or collision out of which the cause of action arose, or by accepting an operator's or chauffeur's license under the Vehicle Code of this state, consented to the service of process upon him outside of the state. See Vehicle Code, §§ 404.1 to 404.4; Chesin v. Superior Court, 142 Cal.App.2d 360, 298 P.2d 593.
In answering this question we are bound by the principles laid down by the United States Supreme Court in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, unless the principles there laid down by the Supreme Court have been altered or modified by later decisions of that court. In the case last cited, Mr. Justice Field speaking for the court said in part: 'But it was also contended in that court, [Circuit Court of United States] and is insisted upon here, that the judgment in the State Court against the plaintiff was void for want of personal service of process on him or of his appearance in the action. * * * If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained. * * * And that they are sound would seem to follow from two well established principles of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent States, and the principles of public law to which we have referred are applicable to them. One of these principles is, that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. * * * The other principle of public law referred to follows from the one mentioned; that is, that so State can exercise direct jurisdiction and authority over persons or property without its territory. (Citations.) The several States are of equal dignity and authority and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one State have no operation outside of its territory, except so far as is allowed by comity; andthat no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. 'Any exertion of authority of this sort beyond this limit * * * is a mere nullity, and incapable of binding such persons * * * in any other tribunals.' [338 P.2d 469] * * * Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it,are equally unavailing in proceedings to establish his personal liability. * * * Since the adoption of the 14th Amendment to the Federal Constitution, the validity of such judgments [personal judgments] may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction, do not constitute due process of law. * * * To give such proceedings any validity, there 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.' (Emphasis added.)
Counsel has not cited to us nor has our research disclosed any decisions of the Supreme Court of the United States which qualifies or limits the principles announced by that court in Pennoyer v. Neff, supra, as set forth in the parts of the opinion therein which we have quoted, insofar as they apply to one not domiciled in the state at the time of the commencement of the action.
In Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, the Supreme Court of the United States held that the state might make its process effective outside of its territorial limits as against one domiciled in the state at the time of the commencement of an action. In the cited case the court had before it for decision the question as to whether a judgment rendered in Wyoming against the defendant Meyer after personal service of process upon him in the State of Colorado, was entitled to full faith and credit in an action brought thereon in the courts of Colorado. In reversing the judgment of the Supreme Court of Colorado which denied full faith and credit to the Wyoming judgment the Supreme Court of the United States based its decision solely upon the ground that Wyoming had the power to make its citizens (domiciliaries) subject to the process of its courts even though at the time of the commencement of the action and service of process they were temporarily absent from their domicile. That this was the basis of the decision is made clear by the language used by Mr. Justice Douglas in speaking for the court. After alluding to the fact that the trial court in Colorado had found as a fact that the defendant was domiciled in Wyoming at the time of the commencement of the action, he said (61 S.Ct. at page 342, 85 L.Ed. at page 283): 'On the findings of the Colorado trial court, not impaired by the Colorado Supreme Court, it is clear that Wyoming had jurisdiction over Meyer in the 1931 suit. Domicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service. * * * Certainly then Meyer's domicile in Wyoming was a sufficient basis for that extraterritorial service. As in case of the authority of the United States over its absent citizens (citations) the authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. 'Enjoyment of the privileges [338 P.2d 470] of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable' from the various incidences of state citizenship. (Citations.) The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incident of domicile is amenability to suit within the state evenduring sojourns within the state * * *.' (Emphasis added.)
The opinion of the Supreme Court does not make it clear whether the cause of action sued upon arose in Wyoming or Colorado but the opinions filed by the Supreme Court of Colorado indicate that the cause of action sued upon, arose from a breach of a contract to be performed in Colorado.
It is apparent that Milliken v. Meyer, supra, does not uphold the service of process upon the defendant in the present case. At the time of the commencement of the subject action as well as at the time of the service of process petitioner was not merely temporarily absent from the state of California, he was then no longer a domiciliary or citizen of California and owed no obligation to California as such.
The noun 'sojourn' is defined as 'a temporary stay.' Webster's International Dictionary, Second Edition.
Respondent here relies upon the decision of the United States Supreme Court in the case of International Shoe Co. v. State 90 L.Ed. 95. There is dictum in the opinion 90 L.ed. 95. There is dictum in the opinion of the court in that case which would seemingly support respondent's position. The Supreme Court, however, in that case was not called upon to decide whether the process of a state court had force beyond its borders as against a natural person of foreign domicile, for in that case the plaintiff in error was a corporation doing business in the state of Washington at the time of the commencement of the proceedings and service upon it was made by the service of process upon its agent within the state as well as by registered mail addressed to the corporation at its office outside the state. See 326 U.S. 320, 66 S.Ct. 160, 90 L.Ed. at page 104, Headnote 12. The Supreme Court did not, in the International Shoe Company case, purport to overrule Pennoyer v. Neff and the language used by it in its dictum (66 S.Ct. at page 158, 90 L.Ed. at page 102) with refrence to 'capias ad respondendum' having given way to the personal service of summons must be read in the light of the fact that the writ mentioned had in Oregon given way to the personal service of summons at the time of the decisions by the court in Pennoyer v. Neff. Further, the Supreme Court in the late case of Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, at page 1296, makes it clear that the court is not retreating from the declarations as to the territorial limits of process and the powers of the respective states as set forth in Pennoyer v. Neff.
We do not believe that the decision of the Supreme Court of the United States in McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, is controlling here for as is pointed out by the majority opinion in Hanson v. Denckla, supra, that case dealt with a contract of insurance which by its terms was to be performed in the State of California and the state had a manifest interest in providing effective redress to its citizens who had been injured by a corporation engaged in an activity that the state treated as subject to special regulation.
Inasmuch as the petitioner here had, before the commencement of the subject action, severed his relationship with California, he is in no different position than if he had, at the time of the incident out of which the cause of action arose, been domiciled in Arizona and but a sojourner in California and to hold that he is subject to the process of the courts of this state would be tantamount to holding that any non-resident committing a tort in California subject himself, without his consent, either express or statutorily implied, to the jurisdiction of the courts of California in an action commenced after he has returned to his own domicile, unless it be said that once a person is domiciled [338 P.2d 471] in a state his obligation to the state to be 'amenable' to its process clings to him wherever he may go despite the severance of his relations with the state.
We have been cited to no authority that holds that one not domiciled in a state is subject to the process of the courts of that state outside of its territorial limits merely because he committed a tort in that state, except the case of Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673. In the case cited the Supreme Court of Illinois upheld a statute of that state which purported to render any person who committed a tort within the state subject to the process of the courts of that state at any place either within or without the state. The court there extended the effect of the decisions of her United States Supreme Court which have upheld statutes which make a nonresident motorist subject to the process of the courts of the state in actions arising out of negligent use of the highways of the state to all tortious acts committed within the state and in effect sets at naught Pennoyer v. Neff. While this case is clearly in point here its reasoning does not appeal to us and we are not bound by it as authority. If Pennoyer v. Neff, supra, is no longer controlling, it is for the Supreme Court of the United States to so hold; it is not within the province of this court so to do.
We of course exclude vehicular torts where the statutes of the state make the use of the highways a consent to such service.
That the territorial limitations upon the process of state courts as set forth in Pennoyer v. Neff still have vitality is illustrated by May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221. In that case plaintiff and defendant were married in the state of Wisconsin. After the marriage they continued to reside there and two children were there born of the marriage. The wife left the state taking her children with her and established her domicile in Ohio. The husband sued for divorce in Wisconsin and as an incident to that action sought custody of the minor children. Defendant wife was served with process in Ohio. The Supreme Court without discussion held that the Wisconsin courts did not by such service obtain jurisdiction over the wife's person and that the judgment insofar as it awarded custody of the children to the husband was not entitled to full faith and credit in Ohio. We can only interpret this decision as holding that the wife's obligation to respond to the process of the courts of Wisconsin which arose out of her domicile there and in reference to rights that accrued to her there, did not cling to her when she severed that domicile and established one in Ohio, for certainly personal service of process upon her in Ohio was sufficient to constitute 'due process' as it is defined in International Shoe Co. v. State of Washington, supra, and Milliken v. Meyer, supra, if the process of the courts of Wisconsin had vitality outside of the territorial limits of Wisconsin.
To hold that a person once domiciled in this state remains amenable to the process of the courts of this state after he has left the state and established a different domicile, upon any cause of action arising against him during the period of his domicile in the state, places him in a position less advantageous than those who remain residents of the state for the statute of limitations will not run against the cause of action (Code Civ.Proc. § 351, cf. § 404.4 Vehicle Code) nor if the action be commenced may it be dismissed for want of prosecution pursuant to the provisions of either sections 581a or 583 of the Code of Civil Procedure; and in a tort action his property in the state may be attached while that of a resident similarly subject to process may not (Code Civ.Proc. § 537, subd. 3). We advert to these matters for we believe they demonstrate that it is not the intent of the Legislature to attempt to give the processes of the courts of this state extraterritoriality against the natural person except in those cases where special statutes such as sections 404.1, 404.2 and [338 P.2d 472] 404.3 of the Vehicle Code have been enacted.
Let a peremptory writ of mandate issue directing the respondent court to vacate its order denying the petitioner's motion to quash service of summons and to enter its order granting that motion.
WHITE, P. J., and FOURT, J., concur.