Miller v. Corning Glass Works

Citations: 429 P.2d 438; 102 Ariz. 326; 1967 Ariz. LEXIS 261Docket: 8028

Court: Arizona Supreme Court; June 22, 1967; Arizona; State Supreme Court

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Dale and Meryl E. Miller, the plaintiffs, filed a lawsuit against Corning Glass Works, the defendant, after a glass coffee pot exploded while the plaintiff was a customer at a restaurant in Phoenix, Arizona, on November 25, 1960. The complaint alleged that the defendant manufactured a defective product and was doing business in Arizona. The plaintiffs attempted to serve the defendant through publication in an Arizona newspaper after filing suit on December 12, 1961. A default judgment was entered on March 22, 1962, after the defendant failed to respond. However, the defendant later filed a motion to set aside the default judgment, claiming lack of proper service, which was granted. 

The plaintiffs appealed, but the appeal was dismissed without opinion on September 25, 1962. Subsequently, on November 1, 1962, the plaintiffs issued a new summons and attempted service via mail and publication. The defendant filed a special appearance and a motion to dismiss the case due to lack of jurisdiction, improper venue, and insufficient service of process, which the court granted on March 11, 1963. 

The plaintiffs argued that the court erred by dismissing the case, asserting compliance with Arizona Rule 4(e) regarding service of process. They claimed that service was properly executed through both publication and registered mail. In response, the defendant contested that they were never served by registered mail and argued that the publication service was insufficient due to flaws in the affidavit provided by the plaintiffs, which contained allegations rather than factual statements. The court noted the absence of evidence confirming registered mail service, supporting the defendant's position.

Nine legal propositions are asserted by the plaintiff to support his assignments of error, with the first eight focusing on constitutional matters. Both parties agree the primary issue is the sufficiency of service of process. The plaintiff posits that the key question is whether service by publication and regular mail constitutes an authorized method for establishing in personam jurisdiction, and whether due process requirements were satisfied. 

The plaintiff asserts that if affidavits presented in support of Rule 4(e) are challenged through a motion to dismiss, that motion must comply with Rule IV(a) of the Uniform Rules of Practice of the Arizona Superior Court. Specifically, if the motion does not clearly articulate the legal points, statutes, and authorities relied upon, and fails to demonstrate good cause for this omission, the motion must be denied concerning the alleged deficiencies in the affidavits. 

Rule 4(e) outlines various methods of serving summons, particularly noting that service by publication is permissible when the defendant is absent or their residence is unknown, provided certain procedural requirements are met, including mailing a summons copy if the residence is known. Service by publication must occur in a local newspaper for four consecutive weeks, and an affidavit must be filed to demonstrate compliance with the service requirements.

Rule 4(e. 2) and 4(e. 3) mandate that an affidavit of service must be filed before obtaining a default, detailing the circumstances justifying the use of Rule 4(e. 1). The plaintiff's affidavit for service by publication is challenged by the defendant, who argues it is insufficient because it fails to state that the defendant had no legally-appointed agent in Arizona. Citing D.W. Onan. Sons v. Superior Court, the requirement for an affidavit to establish facts for service on foreign corporations without a designated agent is emphasized. The court in Evans v. Hallas reiterated the need for essential facts to validate service by publication. The defendant asserts that the plaintiff's omission of the lack of a statutory agent violates Rules 4(e. 1) and (3), a contention the court agrees with, noting that strict adherence to statutory provisions for jurisdiction is necessary. The affidavit must explicitly state that the defendant is a foreign corporation without a legally-appointed agent in Arizona, as having one would negate the validity of service by publication. Moreover, when relying solely on publication for service, the affidavit must demonstrate due diligence in attempting to serve the defendant personally. The court concludes that the plaintiff's affidavit is inadequate, as it fails to present the necessary circumstances and essential facts to justify service by publication, which cannot merely restate statutory language but must provide probative facts to support the ultimate facts required for jurisdiction.

The affidavit dated November 16, 1962, asserts several claims regarding the defendant, a foreign corporation that allegedly is not authorized to conduct business in Arizona, manufactures coffee pots, sells them within the state, provides warranties for its products, and is subject to service by publication in Arizona. However, the affidavit's reliance on information and belief lacks legal standing in Arizona, as no statute permits such a jurisdictional affidavit. Legal principles outlined in 3 Am. Jur.2d, Affidavits indicate that statements based on information and belief are generally insufficient unless expressly authorized by statute. Furthermore, affidavits must be based on the affiant's personal knowledge rather than hearsay or legal conclusions. The California District Court of Appeals in Miller v. Superior Court emphasized that an affidavit must provide satisfactory proof for service by publication, reinforcing the need for adherence to evidentiary rules. Consequently, the decision to vacate the default judgment in favor of the plaintiff and dismiss the case is upheld. McFARLAND, V.C.J. and LOCKWOOD, J. concur.