Opinion
July 27, 1953.
LAYTON, J., sitting.
William J. Storey for Plaintiff.
Samuel R. Russell (of Tunnell and Tunnell) for Defendant.
Motion to quash return of service. Motion granted.
Motor vehicles owned and operated by plaintiff and defendant collided in Delaware. Plaintiff instituted suit and in accordance with Sec. 4590 of the Revised Code of Delaware of 1935 served the Secretary of State, January 23, 1952. On January 24, 1952, a registered letter was mailed to defendant at his last known address, advising him of the institution of suit, service upon the Secretary of State, etc. On February 8, 1952, this letter was returned marked addressee "removed". Plaintiff's local counsel promptly notified plaintiff's New Jersey counsel of this fact, and on May 14, 1952, New Jersey counsel forwarded a new address for defendant which was received by Delaware counsel on May 15. No explanation is given for the three months' delay in securing the new address for defendant. On June 10, plaintiff's local counsel sent another registered letter to defendant's new address containing the information required by Sec. 4590 of the Revised Code. This letter was received on June 17.
Defendant has moved to dismiss upon the ground that registered notice by mail of the institution of suit, service upon the Delaware Secretary of State, etc., was not mailed "forthwith" as required by the statute.
Sec. 4590 required that following service upon the Secretary of State, a copy of the process and notice of service of process upon the Secretary of State be "forthwith" mailed by registered mail to the defendant.
Superior Court for Kent County, No. 8, Civil Action, 1952.
The subject matter of this motion concerns due process of law, and Sec. 4590 must be strictly construed, Webb Packing Co. v. Harmon, 9 W.W. Harr. 22, 196 A. 158. In McLean Trucking Co. v. Stover, 8 Terry 110, 87 A.2d 879, 880, Judge Terry held that the word "forthwith" means with "reasonable dispatch consistent with the circumstances presented." He concluded that the sending of the registered letter required by Sec. 4590 some three months after service upon the Secretary of State was not a forthwith mailing. Defendant argues that in this case, plaintiff did not complete registered notice as required by Sec. 4590 until four months after service upon the Secretary of State and, accordingly, this case comes squarely within the holding of the McLean case just referred to.
Whether or not the three months' period during which plaintiff's attorney may have been using every effort promptly to obtain a new address for defendant should be counted, I do not decide. Compare Paxson v. Crowson, 8 Terry 114, 87 A.2d 881. The fact remains that defendant's new address was received by plaintiff's Delaware counsel on May 15, 1952. He did not send the required notice by registered mail to defendant until June 10. In my judgment, an unexplained delay of 25 days is not a forthwith mailing as contemplated by the statute.
Let the return of service be quashed.