(dissenting).
This is a case wherein two residents of Indiana were involved in an automobile accident in Indiana. One of the drivers (Rush) had purchased an automobile liability policy from State Farm Mutual Automobile Insurance Company. A year and a half after the accident the other Indiana resident (Savchuk) left that state and moved to Minnesota, whereupon he commenced this lawsuit against Rush for injuries suffered in the accident. As Minnesota courts could not constitutionally assert personal jurisdiction over Rush, Hanson v. Denekla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. ed. 2d 1283 (1958),1 Savchuk sought to acquire quasi-in-rem jurisdiction.2 However, Rush has no property in Minnesota. Consequently, Savchuk served a garnishment summons upon State *491Farm in an attempt to garnish any debt due and owing Rush by State Farm. In support of his action, Savchuk relies upon Minn. ■ St. 571.41, subd. 2, relevant portions of which read:
“Subd. 2. Garnishment shall be permitted before judgment in the following instances only:
“(1) For the purpose of establishing quasi in rem jurisdiction
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“(c) the defendant is a nonresident individual, or a foreign corporation, partnership or association.
“ (2) When the garnishee and the debtor are parties to a contract of suretyship, guarantee, or insurance, because of which the garnishee may be held to respond to any person for the claim asserted against the debtor in the main action.”
It is not disputed that Rush is a nonresident individual; thus, subd. 2(1) (c) is satisfied and this case is a proper case for the exercise of quasi-in-rem jurisdiction.3 It is also not disputed that State Farm and Rush are parties to a contract of insurance within the meaning of subd. 2(2). The question is whether, and to what extent, any obligation owed by State Farm can provide a means by which Savchuk can obtain quasi-in-rem jurisdiction over Rush.
Quasi-in-rem jurisdiction over a nonresident by the service of a garnishment summons on the defendant’s nationwide insurer is a creature of Seider v. Roth, 17 N. Y. 2d 111, 269 N. Y. S. 2d *49299, 216 N. E. 2d 312 (1966). As the majority notes, the Seider procedure has been held improper as a matter of Federal maritime law4 as well as of the law of almost all the states which have considered it.5 Only an inferior court in one other state has adopted it.6 Commentary has been highly critical.7 Even in the state of its birth, the procedure remains only because of the opinion of Judge Charles D. Breitel, in which Judge Bergan concurred, in Simpson v. Loehmann, 21 N. Y. 2d 305, 287 N. Y. S. 2d 633, 234 N. E. 2d 669 (1967), the case which reaffirmed Seider. Judge Breitel, appointed to the New York Court of Appeals after Seider, and replacing one of the judges who was in the 4-3 majority in that case, and Judge Bergan, who had dissented in Seider, cast the deciding votes in Simpson for the following reason:
“* * * Only a major reappraisal by the court, rather than the accident of a change in its composition, would justify the overruling of that precedent. Yet the theoretical unsoundness of the Seider case and the undesirable practical consequences of its rule require some comment if only, perhaps, to hasten the day of its overruling or its annulment by legislation.
“It is the most tenuous of nominalist thinking that accords the *493status of an asset, leviable and attachable, to a contingent liability to defend and indemnify under a public liability insurance policy.
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“Accordingly, I concur to affirm but only because the institutional stability of a court is more important than any single tolerable error which I may believe it has committed.” 21 N. Y. 2d 314, 287 N. Y. S. 2d 640, 234 N. E. 2d 674.
Some of the undesirable practical consequences have already arisen. Thus, New Hampshire has adopted the rule that if the non-resident defendant lives in a state which has adopted Seider —i.e., New York — then that defendant’s insurer can be garnished in New Hampshire if the insurer does business there. Forbes v. Boynton, 113 N. H. 617, 313 A. 2d 129 (1973).8 On the other hand, if the defendant lives in a state which has rejected Seider — e.g. Connecticut — then his insurer cannot be garnished. Robitaille v. Orciuch, 382 F. Supp. 977 (D. N. H. 1974). In Vaage v. Lewis, 29 App. Div. 2d 315, 288 N. Y. S. 2d 521 (1968), New York was presented with a case in which a Norwegian resident attempted to garnish in New York the insurer of a North Carolina defendant with respect to an accident which took place in North Carolina. It was held that allowing garnishment in that case would violate the principles of forum non conveniens and due process.9 In light of the fact that most of our sister states which have considered Seider have rejected it, that the com*494mentary is uniformly critical, that a majority of the court which spawned Seider now believes it to be in error, and mindful of its potentially undesirable consequences, I would decline to adopt it in Minnesota. Whether or not it is authorized by § 571.41, subd. 2(2), in my opinion it is unconstitutional as applied to the defendant in this case.
The majority opinion limits the use of the Seider procedure to residents of Minnesota. This is probably constitutionally required.10 As Judge Earl Larson said in Adkins v. Northfield Foundry & Machine Co. 393 F. Supp. 1079, 1081 (D. Minn. 1974):
“One of the principal reasons to limit Seider type jurisdictions is that without such limitations, blatant forum shopping would be possible. * * * Further, this limitation is required to give the forum State a r.ecognizable and protectable interest and to prevent an unfair burden that might be placed upon both the nonresident defendant and its insurance company.”
In Rintala v. Shoemaker, 362 F. Supp. 1044, 1056 (D. Minn. 1973), the late Judge Philip Neville expressed the reasons behind this limitation:
“The fear is that unless this limit is placed on Seider type jurisdiction blatant forum shopping would be possible since many insurance companies, including Aetna, do business in all fifty states. Further, the essential connection between the forum state and the accident at all, the connection which provides the forum state with a recognizable and protectable interest, is that the forum is the residence of the plaintiff. This limit on Seider *495jurisdiction is not only reasonable but it limits any inconvenience which the insurance company might suffer. The only additional state in which garnishment might be had is the residence of the plaintiff. * * *
“* * * On the facts of this case Aetna is simply exposed to an action in one more jurisdiction than it would be otherwise. This certainly is no intolerable burden on it or a similarly situated garnishee.”
In the case at bar, plaintiff and defendant were both residents of Indiana when this accident occurred.11 At that time, under the limitation on Seider, Rush and State Farm were amenable to suit in only one jurisdiction — Indiana. If Savchuk had been a Minnesota resident at that time suit could have been brought in only two states — Indiana and Minnesota. However, if jurisdiction is permissible in this case Rush and State Farm are amenable to suit in all 50 states.
If a motorist in another state drives negligently and injures a Minnesotan, a strong case can be made that this state’s interests are sufficiently great to allow our courts to use the Seider procedure for obtaining jurisdiction over the case. As Judge Neville put it, such a motorist “is simply exposed to an action in one more jurisdiction than [he] would be otherwise.” 362 F. Supp. 1056. However, allowing a potential plaintiff to move to this state after his cause of action has arisen and to invoke Seider to bring the case to Minnesota means that a plaintiff has a choice of 50 jurisdictions in which to sue. Such a result in my opinion violates due process.12 Rush did not injure one who was a Min*496nesota resident on the day of the accident. He should not he forced to defend himself in a Minnesota court.
Under the policies of Schwartz v. Consolidated Freightways Corp. 300 Minn. 487, 491, 221 N. W. 2d 665, 668 (1974) — advancement of Minnesota’s governmental interests and application of the better rule of law — Minnesota’s comparative negligence law, and not Indiana’s contributory negligence law, will apply. Thus, if Rush injures another Indiana resident in Indiana, and that person is able to establish residence in a new jurisdiction, he'may use Seider to bring the defendant in and defend, and avoid Indiana’s contributory negligence law. Under the majority opinion, if my next-door neighbor is negligently injured on my property he is free to move to any other state where my homeowners insurer transacts business and force me to defend there.
The majority opinion’s answer is that the defendant is free to move to dismiss on grounds of forum non conveniens. However, that presupposes jurisdiction, which I cannot accept.13
Accordingly, I would reverse and hold that Minn. St. 571.41, subd. 2(2), is unconstitutional as applied to this case. It would not then be necessary to reach the issue of whether Seider is to become the rule of this state.
Rush did not commit any “act by ¡which [he] purposefully avail[ed him]self of the privilege of conducting activities within [Minnesota], thus invoking the benefits and protections of [our] laws.” Hanson v. Denekla, 357 U. S. 235, 253, 78 S. Ct 1228, 1240, 2 L. ed. 2d 1283, 1298 (1958).
See, Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565 (1877).
Subd. 2(1) is merely procedural, defining the types of defendants over which the exercise of quasi-in-rem jurisdiction is proper. Thus, a court must assert personal jurisdiction over a resident defendant who can be found within the state, and cannot proceed quasi in rem. Of course, subd. 2(1) does not say that quasi-in-rem jurisdiction can be asserted over defendants there listed in all cases, for an additional element is needed — something to garnish, i. e., property located within this state. “If the non-resident have no property |in the State, there is nothing upon which the tribunals can adjudicate.” Pennoyer v. Neff, 95 U. S. 714, 723, 24 L. ed. 565, 569.
Robinson v. O. F. Shearer & Sons, Inc. 429 F. 2d 83 (3 Cir. 1970).
Kirchman v. Mikula, 258 So. 2d 701 (La. App. 1972); State ex rel. Government Employees Ins. Co. v. Lasky, 454 S. W. 2d 942 (Mo. App. 1970); Johnson v. Farmers Alliance Mutual Ins. Co. 499 P. 2d 1387 (Okla. 1972); Jardine v. Donnelly, 413 Pa. 474, 198 A. 2d 513 (1964); De Rentiis v. Lewis, 106 R. I. 240, 258 A. 2d 464 (1969); Howard v. Allen, 254 S. C. 455, 176 S. E. 2d 127 (1970); Housley v. Anaconda Co. 19 Utah 2d 124, 427 P. 2d 390 (1967). See, also, Tessier v. State Farm Mutual Ins. Co. 458 F. 2d 1299 (1 Cir. 1972); Kirchman v. Mikula, 443 F. 2d 816 (5 Cir. 1971); Sykes v. Beal, 392 F. Supp. 1089 (D. Conn. 1975); (Ricker v. Lajoie, 314 F. Supp. 401 (D. Vt. 1970).
Turner v. Evers, 31 Cal. App. 3d Supp. 11, 107 Cal. Rptr. 390 (1973). The decision cited in the majority opinion, Forbes v. Boynton, 113 N. H. 617, 313 A. 2d 129 (1973), is discussed infra.
See footnote 11 in the majority opinion.
In Forbes the New Hampshire Supreme Court stated: “We .are not holding that the Seider rule is to be applied generally to all cases of foreign motorists insured by a company with an office in this State and licensed to do business in New Hampshire. We are merely holding that under the circumstances of this case in a suit by a resident of New Hampshire against a resident of New York where the Seider rule prevails the trial court properly denied the defendant’s motion to dismiss plaintiffs action.” 113 N. H. 624, 313 A. 2d 133.
See, also, Nationwide Mutual Ins. Co. v. Vaage, 265 F. Supp. 556 (S. D. N. Y. 1967).
Farrell v. Piedmont Aviation, Inc. 411 F. 2d 812 (2 Cir. 1969), affirming 295 F. Supp. 228 (S. D. N. Y. 1968); Vaage v. Lewis, 29 App. Div. 2d 315, 288 N. Y. S. 2d 521 (1968); Varady v. Margolis, 303 F. Supp. 23 (S. D. N. Y. 1968); Public Admr. of County of New York v. Unimar Shipping Co. Ltd. 401 F. Supo. 313 (S. D. N. Y. 1975); Rintala v. Shoemaker, 362 F. Supp. 1044 (D. Vlinn. 1973); Adkins v. Northfield Foundry & Machine Co. 393 F. Supp. 1079 (D. Minn. 1974).
Plaintiffs statement of the case indicates that all of the witnesses and records, as well as a treating physician, are located in Indiana, except for plaintiff’s family and two Minnesota physicians who, presumably, treated him after he moved to Minnesota.
In the only reported case where this issue was presented, Robitaille v. Orciuch, 382 F. Supp. 977 (D. N. H. 1974), jurisdiction was denied on other grounds. See the discussion of Robitaille and Forbes v. Boynton, 113 N. H. 617, 313 A. 2d 129 (1973), supra.
“The district courts of this state may fairly exercise their discretion in declining to accept jurisdiction of transitory causes of action brought here by citizens or noncitizens of this state who are nonresident when it fairly appears that it would be more equitable that the cause of action be tried in some other available court of competent jurisdiction.” Johnson v. Chicago B. & Q. R. Co. 243 Minn. 58, 79, 66 N. W. 2d 763, 776 (1954).