Stamps v. Superior Court

Opinion

PIERCE, P. J.

Real party in interest, Barbara Jean Wellington (hereinafter “ex-wife”), brought suit in Yuba County against petitioner, James E. Stamps (“ex-husband”) to establish an Arkansas decree of divorce and to modify it in ways not relevant to this discussion. The action was brought before July 1, 1970. Service of process was attempted but (as is conceded)

[110]

was inadequate to give in personam jurisdiction because the process server in Arizona served the copy of the complaint and summons not upon- ex-husband but upon ex-husband’s wife. Ex-husband appeared specially in the Yuba County Superior Court to quash service of process. The trial court in a memorandum opinion conceded that no service of process sufficient to establish in personam jurisdiction over ex-husband had been made and asserted that the motion was well taken. Nevertheless, the court deemed that someday in some way a valid service of summons might be attained and therefore

denied,

the motion.

July 1, 1970, passed and ex-wife then attempted service by mail to obtain personal service pursuant to the provisions of Code of Civil Procedure section 415.40 of the new Jurisdiction and Service of Process Act (Stats. 1969, ch. 1610). That section provides in part that summons may be made on a person outside this state “by sending a copy of the summons and of the complaint to the person to be served by any form of airmail. . . .”

Proof

of service by that method “shall include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed receipt or other evidence.” (Code Civ. Proc., § 417.20, subd. (a).) Ex-husband at all times herein relevant has been a resident of Arizona.

In the case now before this court the process was sent by airmail, return receipt requested, but the return receipt was returned bearing the notice “unclaimed.” Hence there was no “signed receipt or other evidence” of delivery.

The trial court deemed erroneously that the service described was adequate to comply with the law. In order to obtain in personam jurisdiction through any form of constructive service there must be strict compliance with the requisite statutory procedures.