APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.
Judgment reversed and case remanded with directions.
Mr. V. L. Hash, for Appellant.
Mr. Blaine B. Shimmel and Mr. Wallace W. Clark, for Appellees.
Morgan, J. Stanford, C. J., and LaPrade, J., concurring.
[63 Ariz. 297] Plaintiff's amended complaint charged defendants with the publication and circulation of an alleged libelous statement, together with the unauthorized publication and circulation of his photograph. He alleged that the statements were false and defamatory, and that by reason thereof he was injured in his reputation and good name. He further alleged that the use of his photograph, as published in connection with a magazine story of a crime, and not as news, violated his right of privacy, that he was thereby subjected to ridicule and suffered mental pain and annoyance. He prayed for actual and punitive damages in a substantial sum.
Pending the action, but prior to the filing of the amended complaint, one of the original defendants, Harry E. Strong, died. Plaintiff's application to substitute the administratrix of his estate, his widow, Georgia Marie Strong, as a party defendant was denied. While several defendants were named in the complaint, apparently no manner of service was made on any except Hillman Periodicals, Inc., Hillman Brothers, a corporation, and Sensation
Magazine, Inc. The service [63 Ariz. 298] so made was by delivery of a copy of the amended complaint and summons to Georgia Marie Strong, claimed to be the legal agent of these corporations. Hillman Periodicals, Inc., appeared specially and moved to set aside the purported service of summons upon it, on the ground that it was a nonresident corporation, not qualified to transact business in Arizona, that it had never transacted business here, and that Georgia Marie Strong was not its agent for any purpose. This motion was supported by affidavits. Counter affidavits were filed by the plaintiff. The motion was submitted to the court on the showings so made.
From the proofs so submitted it appears that the moving corporate defendant is a foreign corporation which had never qualified to transact business in this state and had not maintained an office in Arizona nor appointed any agent here, and was engaged solely in interstate commerce. It consigned periodicals from points without Arizona to Strong's News Agency, operated by the deceased in his lifetime, and later by the administratrix of his estate -- his widow. On the last day of the month, bills for all magazines shipped were sent to the agency, which was then, before the 10th of the following month, required to pay the wholesaler's purchase price, with the privilege of securing a credit for unsold magazines by the return of the top covers thereof. The court granted the motion to set aside the service, by an order dated December 7, 1943, reading as follows:
"Motions having been taken under advisement, it is ordered granting motion to set aside purported service of summons."
The order denying the substitution of the administratrix was not made until January 17, 1944. Notice of appeal from the above orders is dated and was filed on February 16, 1944. Since this is an appeal by the [63 Ariz. 299] plaintiff, we ...