United National Bank v. Searles

331 N.W.2d 288, 1983 S.D. LEXIS 285
CourtSouth Dakota Supreme Court
DecidedMarch 23, 1983
Docket13503
StatusPublished
Cited by11 cases

This text of 331 N.W.2d 288 (United National Bank v. Searles) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United National Bank v. Searles, 331 N.W.2d 288, 1983 S.D. LEXIS 285 (S.D. 1983).

Opinions

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 mo[290]*290tion was denied. Appellant takes this appeal attacking the jurisdiction of the trial court to enter the deficiency judgment. Finding his appeal meritorious, we reverse and remand.

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. Ap-pellee 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, SDCL 15-7-2, and South Dakota’s service of process statutes, SDCL ch. 15-9.

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); Ven[291]*291tling v. Kraft, 83 S.D. 465, 466, 161 N.W.2d 29, 29 (1968) (wherein the Court held: “The single question to be decided is whether the asserted personal jurisdiction over the defendant violated the due process clause .... ”); Uhlich v. Hilton Mobile Homes, 80 S.D. 478, 126 N.W.2d 813 (1964).

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.

SDCL 15-9-71 provides for constructive service by publication when a defendant cannot be found within South Dakota. Appellant questions the applicability of SDCL 15-9-7 to in personam actions against nonresidents. At the outset, it is to be noted that the use of constructive service for in personam actions is not a per se violation of due process under the Fourteenth Amendment. Mullane, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. In South Dakota, constructive service by publication on a resident corporation that cannot be located within the State, has long been held to provide in personam jurisdiction. Straub v. Lyman Land & Inv. Co., 31 S.D. 571, 141 N.W. 979 (1913); see also, 62 Am.Jur.2d Process § 69 (1972); Annot., 126 A.L.R. 1475 (1940).

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. SDCL 15-7-6. Likewise, nonresident hunters, SDCL 15-7-13; aircraft operators, SDCL 15-7-9; divorce litigants, SDCL 15-9-8; and absconding debtors, SDCL

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United National Bank v. Searles
331 N.W.2d 288 (South Dakota Supreme Court, 1983)

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331 N.W.2d 288, 1983 S.D. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-national-bank-v-searles-sd-1983.