BARBARA K. WHITE vs. ROY M. HULTGREN, JR

WILKINS, C.J. This petition is to vacate judgment in a tort action in the Superior Court, Middlesex County, arising out of motor vehicle injuries received by Barbara K. White, the petitioner here and the plaintiff in the tort action, against the respondent Hultgren, the motor vehicle operator and defendant in the tort action. The defendant Hultgren, who was a resident of Washington, D. C., in November, 1964, filed interrogatories to the plaintiff White, who neglected to answer them within twenty days. Thereafter the defendant Hultgren, parsuant to Rule 36 of the Superior Court (1954), [Note 1] filed an application for a nonsuit, which was entered on December 15, 1964. On January 18, 1965, judgment in the tort action was entered for the defendant Hultgren. On January 17, 1966, the petitioner White filed this petition, which was made returnable January 28. She gave a surety company bond for costs. On January 18 the order of notice was served on the registrar of motor vehicles. Hultgren had been similarly served in the tort action. On January 27 an attested copy of the petition with order of notice and officer's return of service was mailed to the respondent Hultgren at 2151 P Street, Washington, by air mail, certified mail, which he received on February 3, 1966.

On January 28, 1966, this petition was allowed while the respondent was still unaware of its pendency. He did not learn of this until February 3, 1966, when he received the attested copies, as in the meantime he had moved to another address in Washington of which the petitioner was unaware.

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On March 17, 1966, the respondent, appearing specially for the purpose of contesting jurisdiction in the present petition, filed in the Superior Court a motion for rehearing and for vacation of the order granting this petition to vacate. On January 7, 1967, the motion was heard on statements of counsel and was denied. The respondent excepted.

Due process of law requires that the respondent in a petition to vacate judgment receive notice adequate to permit him to appear and defend. Nickerson v. Fales, 342 Mass. 194, 199-200, citing Webb Packing Co. v. Harmon, 39 Del. 22, 29-30. There must be valid service of process because a petition to vacate judgment is a new proceeding, independent of the action in which the judgment was entered. Maker v. Bouthier, 242 Mass. 20, 21-22. Beserosky v. Mason, 269 Mass. 325, 328. Lynch v. Springfield Safe Deposit & Trust Co. 300 Mass. 14, 16. Noyes v. Bankers Indemn. Ins. Co. 307 Mass. 567, 570.

The first question facing us is whether the petition to vacate was properly begun by service on the registrar of motor vehicles. Under G. L. c. 90, Section 3A (as amended through St. 1955, c. 196, Section 1), such service is authorized "in any action or proceeding . . . growing out of any accident or collision in which such person . . . [a nonresident] may be involved while operating a motor vehicle" on a public way in this Commonwealth.

In particular, the issue is whether a petition to vacate judgment in such an action which was properly brought in the first place by service on the registrar can be rightly described as "growing out of any accident" after a default for procedural failure or whether it should be described as "growing out of a nonsuit due to failure to file answers to interrogatories." We prefer the former construction. We are so convinced by the intent of the original statute which "was to assure to one, sustaining injury or damage due to the operation here of an automobile by a nonresident, the opportunity to seek redress in our own courts rather than to be remitted to bringing an action outside the Commonwealth wherever jurisdiction might be found, a circumstance

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which might render illusory the right to sue." Toczko v. Armentano, 341 Mass. 474, 477. It would be a step in the opposite direction to construe the statute as calling for the loss of jurisdiction by procedural shortcomings on the part of one of the parties, even though that party be a resident of this Commonwealth.

The next question is whether jurisdiction over the respondent was obtained by the methods of notice to him which were used. In addition to service of process on the registrar, G. L. c. 90, Section 3C (1), as appearing in St. 1937, c. 387, requires that "notice of such service upon the registrar . . . and a copy of the process shall forthwith be sent by registered mail, with return receipt requested, by the plaintiff to the defendant . . .." See Nickerson v. Fales, 342 Mass. 194, 197, where it was said that for a statute like G. L. c. 90, Sections 3A-3C, to be valid "it `must . . . contain a provision making it reasonably probable that notice of the service on the . . . [registrar] will be communicated to the non-resident defendant who is sued.' Wuchter v. Pizzutti, 276 U.S. 13, 18. . . . There must be compliance with . . . [the statutory requirements for notice] before jurisdiction over a nonresident defendant can attach. Service on the registrar, without more, is not enough." See also pp. 190-200 of the Nickerson case where it was said, quoting from Webb Packing Co. v. Harmon, 39 Del. 22, 29-30, "The reason for . . . [the use of the word "forthwith"] is clear. The Legislature intended to secure, as nearly as may be, to a non-resident defendant against whom jurisdiction is attempted under the statute, the same opportunity to defend before trial that he would have if personal service had been made upon him in this State. Opportunity to defend includes timely notice, in order that the testimony of witnesses, which by delay might be lost, may be obtained. The contents of the notice and the time of transmission are matters of substance affecting the validity of the process.'"

It is obvious that what was done here did not meet the requirements of Section 3C (1). A mere chronology of events

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proves this fact. The petition to vacate was filed on January 17, 1966. Service on the registrar was on January 18. Notice was mailed to the respondent on January 27, and was received on February 3, 1966. On January 28 the petition to vacate judgment was allowed.

The motion for vacation of the order granting the petition to vacate judgment and for a rehearing should have been allowed.

Exceptions sustained.