UNITED NATIONAL BANK, Viborg, South Dakota, A National Banking Corporation, Plaintiff and Appellee, v. Jeff SEARLES, Defendant and Appellant.
No. 13503.
Supreme Court of South Dakota.
Decided March 23, 1983.
Considered on Briefs March 25, 1982.
Defendant next claims numerous errors in admitting evidence of defendant‘s past wrongs or crimes, arguing that the evidence was offered and admitted in the State‘s case-in-chief as proof of defendant‘s character, in violation of
Defendant next argues that the trial court‘s sentence is erroneous. At the time of defendant‘s trial and conviction he was serving a sentence in the South Dakota State Penitentiary on a 1981 conviction of receiving stolen property. Defendant‘s sentence on Count II was ordered to commence upon release from the penitentiary on the stolen property conviction. This is contrary to our interpretation of
We affirm the judgment of conviction and remand for re-sentencing.
All the Justices concur.
Kathleen J. Armstrong of Marmet & Armstrong, Centerville, for defendant and appellant.
HENDERSON, Justice.
ACTION
Appellee, by its complaint, sought an in personam judgment of $26,461.61, possession of secured personal property, foreclosure of liens, sale of personal property, a deficiency judgment and costs. From a default judgment in the amount of $10,405.86 entered in favor of appellee, appellant motioned to vacate this judgment which motion
FACTS
Appellee, United National Bank, on March 26, 1979, commenced an action against appellant, Jeff Searles, to recover on two defaulted promissory notes and to foreclose the security interests on appellant‘s truck and backhoe which secured the notes. Appellant‘s truck was titled in South Dakota, and appellant had stated in one of the security agreements that the backhoe was to be kept in South Dakota. Summons was issued; however, the Turner County Sheriff was unable to find appellant and make service. While attempting to discover appellant‘s whereabouts, the Sheriff obtained information that appellant had moved to Missouri.
Appellee‘s attorney thereupon requested service on appellant by publication. As part of appellee‘s request, an affidavit of the Sheriff was included which set forth that after due diligence, appellant could not be located. On April 16, 1979, the circuit court ordered that service by publication be made and that copies of the summons and complaint be mailed to appellant in care of appellant‘s father, who resided in South Dakota.
Service by publication began on April 26, 1979, and ran until May 17, 1979. Approximately two weeks within securing an Order For Publication, and at the approximate time of the first publication, appellee discovered appellant‘s Missouri address. Appellee then repossessed the backhoe and truck in Missouri and thereafter sold them. However, the proceeds did not cover the amount due on the notes. Appellant did not pursue the deficiency judgment request until one year after the sale of this property. Default judgment for the deficiency was entered by the trial court on November 17, 1980. Appellee never pursued its remedies of foreclosure under its complaint.
On the 23rd of February, 1981, appellant specially appeared to vacate the default judgment. A hearing was had on March 23, 1981, and on May 6, 1981, the trial court entered an order denying appellant‘s motion.
CONTROLLING ISSUE
Although the parties hereto treat five separate, identical issues in their briefs, there is but one controlling issue. A ruling thereon is dispositive of this appeal. Upon the facts herein, was the default judgment properly entered based upon constructive service of process? We hold that it was not.
DECISION
This action pertains to the question of whether a defendant domiciled in another state may be subject to the in personam jurisdiction of the State of South Dakota. Essentially, there are two aspects to this question. The first aspect is the out-of-state defendant‘s amenability to suit. This is a jurisdictional question that deals with the power of a South Dakota court to exercise in personam jurisdiction over an out-of-state defendant. Critical to the resolution of jurisdictional matters is an inquiry into the applicability of South Dakota‘s long-arm statute,
The second aspect of this question deals with procedural due process. The focus here is on the manner of service of process. Dispositive of the due process issue is a determination of whether or not the service of process was reasonably calculated under the circumstances to apprise interested parties of the pendency of an action against them. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950); Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363 (1914); Priest v. Las Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751 (1914); Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520 (1900);
Appellant, in his brief, admits that he is not challenging the application of South Dakota‘s long-arm statute. Rather, appellant attacks the service of process and asserts a lack of due process. As such, we shall forego an examination of this state‘s long-arm statute, and direct our attention to the service of process issue and procedural due process.
Additionally, our statutes specifically provide that a nonresident who is involved in an automobile collision in South Dakota is subject to in personam jurisdiction and constructive service of process.
Unfortunately for appellee, appellant does not fit within any of the above-listed categories or the provisions of
Conduct such as appellee‘s was addressed cogently in Schroeder v. City of New York, 371 U.S. 208, 212-13, 83 S.Ct. 279, 282, 9 L.Ed.2d 255, 259 (1962):
As was emphasized in Mullane, the requirement that parties be notified of proceedings affecting their legally protected interests is obviously a vital corollary to one of the most fundamental requisites of due process—the right to be heard. “This right . . . has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” 339 U.S., at 314. . . .
The general rule that emerges from the Mullane case is that notice by publication
In light of the clear directives from Mullane and Schroeder, when a party litigant discovers the address of an out-of-state defendant before or during the pendency of service by publication of notice, that party litigant must then attempt to obtain personal service of process to secure in personam jurisdiction over defendant.
As we held in Ryken v. State, 305 N.W.2d 393 (S.D.1981), before service by publication under
Appellee‘s duty to apprise appellant, the interested party, did not evaporate once it had conducted a search which comported with the “due diligence” standards in light of its discovery as to the actual whereabouts of appellant. Appellee owed a duty to put this additional information to use, rather than restricting its view to hopes of obtaining a default judgment by publication.
Therefore, we reverse and remand the decision of the lower court with directions to vacate the default judgment entered below, appellant to recover costs herein.
Reversed and remanded.
DUNN and MORGAN, JJ., concur.
FOSHEIM, C.J., and WOLLMAN, J., concur in result.
FOSHEIM, Chief Justice, concurring in result.
It appears undisputed that this is an action in personam. Appellant resides in Missouri. Service was had on appellant by publication in a Parker, South Dakota, newspaper. The absence of jurisdiction over the person of appellant did not result from any due process failure, as the majority implies. That question is never reached. The trial court simply lacked jurisdiction because appellant was not served as required by statute. While acknowledging this fact, the majority gratuitously, and at points erroneously, discusses whether the service complied with due process.
My analysis of this issue begins with South Dakota‘s long-arm statute,
I part company concerning the type of service within South Dakota which secures jurisdiction over the person. The majority misreads Straub v. Lyman Land & Invest. Co., 31 S.D. 571, 141 N.W. 979 (1913), for the proposition that in personam jurisdiction can be obtained via service by publication. Except as hereafter noted, our statutes are clear that jurisdiction over the person can only be obtained by personal service.
Before explaining South Dakota‘s statutory scheme for service of process conferring jurisdiction of the person, it is necessary to closely examine Straub. Straub sued a domestic corporation, alleging breach of contract and praying for damages of $300. The summons and complaint were personally served on the treasurer of the corporation at his residence in Lyon County, Iowa. A default judgment was entered against the corporation. The corporation moved to vacate the judgment for want of jurisdiction. The applicable statute simply allowed service of the officers, director or managing agent of a domestic corporation. The majority finds comfort in Straub from the language of an Illinois case quoted therein but which we noted did not provide the basis of our decision. In Straub we further noted that the Illinois Supreme Court, interpreting an Illinois statute (al-
We think the rule is that, when a citizen of the state is within its territorial jurisdiction, the state may authorize any mode of service reasonably designed and calculated to give him notice of the judicial proceeding impending, and to afford him a reasonable opportunity to defend in its courts, and any statutory mode of service which fulfills these requirements affords ‘due process of law.’ (emphasis added)
Id. at 980. Straub interpreted our South Dakota statute to allow personal service out of state and that such service afforded defendant due process. Straub stressed that its decision was based on the fact that the defendant, because it was a domestic corporation, was “a resident of the state which never was and never can be outside its boundary lines.” Id. Straub was emphatic in stating that “[t]he case before us, we think, is distinguishable from a case where a natural person, either resident or nonresident, is attempted to be served with process without the boundaries of the state.” Id. at 979. (Emphasis added.)
Service of process within South Dakota is governed by
An exception to that rule is service by publication.
I am hereby authorized to state that Justice WOLLMAN joins in this concurrence in result.
FULLERTON LUMBER COMPANY, Wessington Springs, South Dakota, Plaintiff and Appellant, v. Lloyd REINDL, Defendant and Appellee.
No. 13818.
Supreme Court of South Dakota.
Decided March 23, 1983.
Argued Nov. 18, 1982.