573 P.2d 1229 | Or. | 1978
Plaintiff, personal representative of the estate of Norma Penchard, secured a default judgment in a personal injury action against the defendant. The judgment was set aside under ORS 18.160 for excusable neglect. At trial, the defendant prevailed on the merits. Plaintiff appeals, contending the trial court abused its discretion in setting aside the default judgment.
In March, 1971, plaintiff’s decedent was involved in a three-car accident involving defendant and a third party.
Defendant, a Minnesota resident, came to Portland in 1969 to attend a Baptist seminary. He remained a student until graduation in June, 1972, which was approximately 15 months after the accident. When he left Portland to return to Minnesota, he left the address of his parents and of the church where he was to be a minister with the school, with his landlord, and with the tenants who moved into the apartment he vacated. He also filed an accident report with the police department. However, he did not leave a forwarding address with the post office nor did he notify the Motor Vehicles Division.
"(2) Persons licensed as operators or chauffeurs under this chapter shall notify the division of any change of residence from that noted on their license as issued by the division or any change of name from that noted on their license as issued by the division, including a change of name by marriage. Notice shall be given in writing within 30 days after the date of the change. The notice shall indicate the old and new residence address or the former and new name and the number of the license then held. Upon receiving the notice, the division shall issue a license indicating the new name or residence address but bearing the same distinguishing number as the old license.”
ORS 482.990 provided in part:
"(1) Except as otherwise provided in this section or elsewhere in the laws of this state, a violation of this chapter is a misdemeanor and is punishable, upon conviction, by a fine of not more than $500 or by imprisonment for not more than six months, or both.”3
The trial court had the benefit of the record and defendant’s testimony and concluded that defendant had shown excusable neglect. Our review under ORS 18.160 is limited to determining whether the trial court abused its discretion in setting aside the default.
Affirmed.
The personal injury action was brought by Norma Penchard. Subsequently, she died from causes not related to the accident, and her personal representative was substituted as plaintiff.
While a more diligent search would probably have revealed defendant’s address in Minnesota, the plaintiff was entitled to serve the defendant by substitute service on the Administrator of the Motor Vehicles
"(7) * * * Due diligence is satisfied when it appears from such affidavit that the defendant cannot be found residing at the address given by the defendant at the time of the accident, or residing at the most recent address furnished by the defendant to the Administrator of the Motor Vehicles Division, if it appears from the affidavit that inquiry at such address or addresses was made within a reasonable time preceding the service of summons or process upon the Administrator of the Motor Vehicles Division. * * *”
ORS 482.290(2) has been slightly reworded and renumbered to 482.290(3) since the incidents in this case, but the substance of the statute remains the same.
ORS 482.990 as it applies to ORS 482.290 has been amended (ch 451, § 220, Or Laws 1975), and a violation of ORS 482.290 is presently a Class D traffic infraction.
ORS 15.190 was amended in 1973 and the following language relating to the duty of a resident who departs the state was added:
"(2) * * * Likewise, each resident of this state, who, while operating a motor vehicle on the public highways of this state, is involved in any accident, collision or liability and thereafter within three years departs from or cannot be found within this state appoints the Administrator of the Motor Vehicles Division as his lawful attorney for service of summons as provided in this section for nonresidents. Every motorist or user of the roads, highways and streets of this state shall forthwith notify the Administrator of the Motor Vehicles Division of any change in his or its address which occurs within three years of such accident or collision.” Or Laws 1973, ch 60, § 1.
As the statute was amended in 1973, it is not applicable to the facts in this case.