Barbara Ann Jackson received injuries in an automobile accident with a vehicle allegedly driven by Woodrow Wilson Welch (Welch). Barbara Ann and her husband, Elmer Lee Jackson (Jackson), filed suit against Welch to recover damages. Welch, who had in the interim suffered personal tragedies of his own, moved from his rural residence to the City of Talhequah, Oklahoma, and from there to some unknown place in California. Jack-sons made numerous attempts at personal service on Welch, all of which were returned with remarks indicating, in substance, that Welch was not found, having moved to California.
Counsel for the Jacksons resolved to serve Welch by means of the Oklahoma Nonresident Motorists Statute,
State Farm defended on the grounds that there was no valid judgment on which to predicate an indebtedness of State Farm to Welch, because the court was without jurisdiction to grant judgment in the absence of proper service. The trial court subsequently sustained State Farm’s position. Jacksons appeal.
There is no factual dispute. Counsel for the Jacksons admits non-compliance with the letter of the law as set out in
“(a) by serving a copy of said original summons or notice of suit on said Secretary of State or in lieu thereof by mailing with postage prepaid by certified mail with return receipt requested a copy of said original summons or notice of suit to said Secretary of State, together with a fee of Two Dollars .
“(b) by mailing to the defendant ., within fifteen (15) days after the filing of said summons or notice with the Secretary of State, by registered mail with return receipt requested, addressed to the defendant at his last known residence or place of abode, a notification of said filing with the Secretary of State.”
Prior to Welch’s departure for California, Welch had his mail forwarded to his son’s residence, but Welch had never lived at the residence of his son. In an attempt to comply with subparagraph (b), counsel sent notice of suit by registered mail to the residence of Welch’s son. This was done on the belief that the notice was more likely to get to Welch addressed as it was, than by sending the notice to his last known address.
Counsel attempted to serve the Secretary of State, as required by subsection (a) by filing his summons and a copy in the office of the Court Clerk of Cherokee Coun *1256 ty, together with sufficient funds for the Secretary of State’s fee, and requesting the Court Clerk to send a copy of the notice to the Secretary of State. For some unknown reason, the notice was posted by regular mail without certification or request for a return receipt. Counsel received from the office of the Secretary of State a cash register receipt from the Secretary of State’s office for the amount of three dollars bearing hand writing by some unknown person stating “Dist. Ct. Cherokee County C-72-177.” The number C-72-177 correctly identified Jacksons’ suit against Welch.
Section 398 requires that:
“Proof of the filing of a copy of said summons or original notice of suit with the Secretary of State, and proof of the mailing or personal delivery of said notification to said nonresident shall be made by affadivit of the party doing said acts. All affidavits of service shall be endorsed upon or attached to the originals of the papers to which they relate. All proofs of service, including the return registry receipt, shall be forthwith filed with the Clerk of the District Court.
“Provided, that if the party or his attorney, makes an affidavit that the registry receipt has been lost, such affidavit may be filed in lieu of the registry receipt.”
Counsel received no registry receipt, only the aforementioned $3.00 cash register receipt. The cash register receipt was not filed of record until January of 1974, almost six months after Jacksons had taken judgment by default against Welch. Nor did counsel attempt to file with the court any affidavit, which admittedly could not contain a sworn statement as to the loss of the registry receipt, but which could have explained the absence of the registry receipt.
Jacksons contend that their admitted failure to comply with the letter of the notice provisions of the Nonresident Motorist Statute does not affect the validity of their judgment in that their efforts at service substantially comply with the requirements of the law. They cite
Williams v. Egan,
Okl.,
Strict compliance with
The purpose of the subject legislation is two fold, to afford the injured resident means of redress and to afford the nonresident motorist a meaningful opportunity to defend himself. Jacksons do not contend that Welch ever had actual notice of the suit. In this case several procedural steps for obtaining substitute service on the nonresident motorist under
Lastly, Jacksons argue that since State Farm had notice of Jacksons’ intent to take a default judgment, but opted to take no action to prevent that occurrence, State Farm is now estopped to raise the defect in service. The estoppel argument is not persuasive. Jacksons offer no authority in support of their estoppel argument.
State Farm cites as authority for its position
Thompson v. Liberty Mut. Ins. Co. of Boston, Mass.,
Judgment of the trial court affirmed.
