Maupin v. State ex rel. Department of Motor Vehicles

530 P.2d 866, 20 Or. App. 77, 1975 Ore. App. LEXIS 1563

Opinions

FORT, J.

Petitioner Manpin, after a hearing held under ORS 482.550, was found by the Oregon Motor Vehicles Division (hereinafter referred to as MVD) to have refused to take a breathalyzer test. His driver’s license was therefore suspended. He appealed pursuant to ORS 482.560.

It is conceded that he filed the required petition in Multnomah County Circuit Court under the latter section and had delivered a copy’ of it on February 26, 1974, to the manager of the Portland office of the MVD. No summons accompanied its delivery and none was ever served anywhere on the MVD. In his brief, he states:

“* * * Everything was set forth in the Petition except the time when the Appellant was to appear * * (Emphasis supplied.)

Thereafter, on March 12, petitioner filed a motion for a default judgment. This was not served on the MVD. Also on March 12, the trial court, by order, allowed the motion for default judgment against the MVD and on March 15 entered a default judgment which vacated the suspension order. On the same date, the MVD filed a motion to strike portions of the petition. No disposition was made of this motion.

On March 27, the MVD filed a motion to set aside the default judgment pursuant to ORS 18.160. After argument on April 19, the trial judge denied this without findings or opinion. MVD appeals both from the judgment dismissing its order of suspension and from the order denying its motion to vacate that judgment. It challenges entry of the judgment on the ground the court lacked jurisdiction to enter it be cause there was no valid service of the petition constituting the appeal upon it. Furthermore, it is conceded the trial court failed to give the 10-day notice of trial prior to entry of the default as provided in ORS 482.560 (1). This section provides:

“If, after a hearing as provided by ORS 482.-540 and 482.550, an order of suspension is issued, the person shall have the right, within 30 days after he receives notice of the order of suspension, to appeal the matter by filing a petition in the circuit court for the county where he resides. The court upon receipt of the petition shall set the matter for trial upon 10 days’ notice to the division and to the appellant. The trial in the circuit court shall be de novo and the appellant shall have the right to a jury as provided in criminal actions.” (Emphasis supplied.)

When the statute creating a right of action is silent as to the procedure to be followed in implementing it, ORS 1.160

Footnotes

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① provides that “any suitable process * * * may be adopted which * * * [appears] most conformable to the spirit of the procedural statutes.” We think that statute has application here. Meaney v. State Industrial Acc. Com., 113 Or 371, 384-85, 227 P 305, 232 P 789 (1925); Lefler v. Lefler, 218 Or 231, 248-49, 344 P2d 754 (1959).

ORS 15.080 (2), relating to service of summons, provides:

“The summons shall be served by delivering a copy thereof, with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows:

U* # # # &

“(2) If against any county, incorporated city, school district or other public corporation, commission or board in this state, to the clerk or secretary thereof. If any such commission or board does not have a clerk or secretary, to any member thereof.”

In State ex rel Kleinsorge v. Reid, 221 Or 558, 352 P2d 466 (1960), the court after quoting OES 15.080 (2), said:

“* * * This statute appears to be a further legislative recognition that an action may be maintained against a state commission or board as a legal entity * * *.” 221 Or at 565.

The court then concluded:

“From a review of our prior decisions we are satisfied that the board as created by statute is an agency of the state vested with limited corporate powers and is best described as a public quasi-corporation * * 221 Or at 570.

We conclude the Department of Transportation (OES 184.610 to 184.612) and its subsidiary, the Motor Vehicles Division (OES 184.615 (2) (c)) constitute a “board or commission of this state” within the meaning of OES 15.080 (2).

No contention is made that the petition was served upon the clerk or secretary either of the Department of Transportation or of the Motor Vehicles Division (OES 184.615(3)), the Director of Transportation (OES 184.620), or upon any member of the Oregon Transportation Commission (OES 184.612).

Since OES 482.560 is silent as to the method of serving the Motor Vehicles Division, we think the general statute, OES 15.080 (2) previously set forth, is “most conformable to the spirit of the procedural statutes.” OES 1.160. Clearly, it was not complied with by delivery of a copy of the petition to the manager of the Portland office of the MVD.

Here, however, the MVD voluntarily filed a general appearance by moving to strike portions of the petition. It made no effort to quash the attempted service of the petition on its Portland office, which we have here held to be a nullity. By this general appearance, the circuit court on March 15 acquired jurisdiction over the person of the MVD. It already had acquired jurisdiction over the subject matter by the filing of the petition, which was correctly filed in that court.

We now turn to the failure of the court to allow the motion to vacate the judgment. We note from the affidavit filed by MVD’s counsel therewith, that no notice of trial of any kind was given MVD by the court prior to the taking of the default judgment, despite the express requirement of OES 482.560 (1). Petitioner concedes not only that no summons accompanied the copy of his petition delivered to the Portland office, but that the petition itself did not specify any time within which any response, appearance, or other act was required by MVD.

In State ex rel Kalich v. Bryson, 253 Or 418, 453 P2d 659 (1969), the court said:

“Concededly it is important that defendant be informed of the time within which he must respond to the plaintiff’s complaint. If, as in the present case, no time is specified he should be entitled to assume that notice of specified time for answer or appearance is forthcoming, and, until he receives it, the machinery of the court should not be permitted to move to his detriment. If he receives no notice relating to the time for answer or appearance, it would seem clear that a default judgment entered against him would be void and therefore subject to both direct and collateral attack. We ordinarily explain this by stating that because the defendant failed to receive proper notice the court did not have jurisdiction. It is more accurate to say that because of the lack of notice to the defendant the. court did not have jurisdiction to enter a default judgment.” (Emphasis in original.) 253 Or at 421-22.

Thus it is clear that in the absence of any notice to the MVD setting forth the time for appearance, and the failure of the court to give the 10-day notice of trial mandated by the statute, that it was error both to grant the default judgment and later to refuse to vacate it.

Reversed.

ORS 1.160 provides:

“When jurisdiction is, by the constitution or by statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding is not specifically pointed out by the procedural statutes, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the procedural statutes.”