Weisfeld v. Superior Court

VALLÉE, J.

Petitioner seeks a writ of prohibition to restrain the Superior Court of the County of Los Angeles from taking any further proceedings in an action entitled “Harriet Tasoff and Lloyd A. Tasoff v. H. Daniel Weisfeld,” No. 579348, until H. Daniel Weisfeld, the defendant in that action, has been served with process in the manner prescribed by law.

Harriet Tasoff and Lloyd A. Tasoff, at all pertinent times, have resided in Los Angeles. On October 27, 1950, they commenced action 579348 against petitioner Weisfeld to recover damages for personal injuries and caused a summons to be issued. The accident was alleged to have occurred in Los Angeles on August 5, 1950, and to have resulted from the operation of a motor vehicle by Weisfeld on a highway.

Petitioner Weisfeld, born February 17, 1931, was 19 years of age at the time action 579348 was commenced. Since January 8, 1945, his parents have constantly resided in Dallas, Texas. During all of said time petitioner has been, and is now, a resident of Texas, and is now, and ever since March 7, 1951, has been, a member of the armed forces of the United States, and ever since December 1, 1951, he has been, and still is, stationed at Fort Hood, Texas.

On November 19, 1951, a copy of the complaint and summons in action 579348 was served on the Director of Motor Vehicles of California with a fee of $2.00. On November 30, 1951, one Holland sent a notice of service of process on

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the director

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and a copy of the summons and complaint, by registered mail, to petitioner at “2409 Park Eow, Dallas, Texas.” The papers so mailed and the envelope in which they were contained were received and receipted for by petitioner’s mother about December 5, 1951. Petitioner was not, at the time of the receipt of said papers by his mother, in Dallas, but was at Port Hood, Texas. He has never subscribed his name, nor has he authorized any other person to subscribe his name, to any receipt for said papers. His mailing address at that time was “Private TJS54019834 END DET 4005th USU Port Hood Texas.” Petitioner has never been personally served with process, nor has summons been published, nor has he appeared in action 579348.

Section 404 of the Vehicle Code provides that when a nonresident accepts the rights and privileges of using the highways of California by driving a motor vehicle thereon, he, by such act, appoints the Director of Motor Vehicles as his attorney, on whom may be served all lawful processes in any action against such nonresident growing out of an accident or collision resulting from the operation of any motor vehicle on such a highway by himself or agent. Subsections (b), (c), (d), (e), and (h) of section 404 read: