NOSAL v. COLLETT, 8 Ariz. App. 571 (1968)

448 P.2d 415

Ruth NOSAL, Appellant, v. Robert D. COLLETT and Jane Doe Collett, husband and wife, Appellees.

No. 1 CA-CIV 592.Court of Appeals of Arizona.
December 16, 1968. Rehearing Denied January 17, 1969. Review Denied March 11, 1969.

The Superior Court of Maricopa County, Cause No. 180985, R. C. Stanford, Jr., J., quashed service of process and abated the action and plaintiff appealed. The Court of Appeals, 446 P.2d 950, reversed and remanded. On motion for rehearing the Court of Appeals held that where copies of summons and complaint were served on superintendent of motor vehicles and copies were sent by registered mail to nonresident defendants, under statute, the affidavit of service should have stated that registered mail was used and where affidavit did not so state the service would be quashed.

Motion for rehearing granted and judgment of trial court affirmed.

Otto H. Linsenmeyer and Gerald G. Eastman, Phoenix, for appellant.

Beer Kalyna, by William F. Lee, Phoenix, for appellees.

PER CURIAM.

This is an opinion and order granting rehearing. A rereading of Miller v. Corning Glass Works, 102 Ariz. 326, 429 P.2d 438
(1967), has convinced the two judges who had concurred in the majority opinion previously released, 446 P.2d 950, that their decision is not the law of this state. Miller flatly holds that an affidavit on information and belief, filed to correct deficiencies in an affidavit pertaining to substituted service, is ineffective. (102 Ariz. 330, 429 P.2d 438.) The strict construction accorded Rule 4(e), as amended, Rules of Civil Procedure, 16 A.R.S., by this decision of our Supreme Court would indicate that it would give similar treatment to the requirements of the subject statute (A.R.S. § 28-503). A unanimous court now believes that the dissenting opinion of Chief Judge Hathaway, appended to the opinion previously released, correctly states the law of this jurisdiction.

Accordingly, the motion for rehearing is granted and the judgment of the trial court is affirmed.

NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120, subsec. E.