VanNort v. Davis

Decision Date30 October 1990
Docket NumberNo. 73023,No. 3,73023,3
Citation800 P.2d 1082
Parties1990 OK CIV APP 95 Gerald T. VanNORT, Appellee, v. Kenneth DAVIS, Appellant. Court of Appeals of Oklahoma, Division
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Appeal from the District Court of Texas County; Edward L. Thompson, Judge.

Ronald L. Kincannon, Boise City, for appellee.

John Richardson, Elkhart, Kan., for appellant.

MEMORANDUM OPINION

HUNTER, Vice Chief Judge:

Appellee filed this small claims action against Appellant on January 20, 1989. Appellee attempted to serve process on Appellant by certified mail, but Appellant refused to accept the mail and the process was returned undelivered. Appellee did not seek to serve Appellant personally or by any other manner. On February 8 1989, a default judgment was rendered against Appellant for $240.00 plus costs and interest. Appellant was unaware of the lawsuit against him until he received a copy of the journal entry of judgment by first class mail. Appellant thereupon filed a motion to set aside judgment on the ground that service was legally insufficient and the trial court therefore lacked jurisdiction. Upon hearing, the trial court overruled Appellant's motion, finding that notice was sufficient under the Small Claims Procedure Act (SCPA) and Rule 10 of the Rules for District Courts of Oklahoma. This appeal followed.

On appeal, Appellant alleges the trial court erred in finding that notice to him was sufficient under the requirements of the SCPA, 12 O.S. 1981 §§ 1751 et seq. The SCPA governs the procedure to be followed in all small claims actions. 12 O.S.Supp.1985, § 2001.

Section 1755 of the SCPA sets forth specific requirements for service of process upon a defendant, as follows:

Unless service by the sheriff or other authorized person is requested by the plaintiff, the defendant shall be served by mail. The clerk shall enclose a copy of the affidavit and the order in an envelope addressed to the defendant at the address stated in said affidavit, prepay the postage, and mail said envelope to said defendant by certified mail and request a return receipt from addressee only. The clerk shall attach to the original affidavit the receipt for the certified letter and the return card thereon or other evidence of service of said affidavit and order. If the envelope is returned undelivered and sufficient time remains for making service, the clerk shall deliver a copy of the affidavit and order to the sheriff who shall serve the defendant in the time set in Section 1756.

Section 1756 provides that if sufficient time does not remain for personal service, the plaintiff can apply for a new order with a different time for appearance, which the clerk must prepare. Sections 1764 and 1765 also provide for the fees for personal service to be collected by the clerk and taxed as costs to be awarded the prevailing party. Thus, if the plaintiff prevails, he is not prejudiced by the cost of personal service upon the defendant.

Jurisdiction depends upon issuance and service of process and without these, jurisdiction does not obtain. Statutes prescribing the manner of service of summons must be substantially complied with in order to vest the court with jurisdiction. Nikwei v. Babcock, 822 F.2d 939 (10th Cir.1987); Williams v. Egan, 308 P.2d 273 (Okl.1957). The state cannot invest itself with, and exercise through its courts, jurisdiction over a person in a proceeding which may directly and adversely affect his legally protected interests without employing a method of notification which is reasonably calculated to give a person knowledge at a meaningful time and in a meaningful manner of the attempted exercise of jurisdiction and an opportunity to be heard. Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okl.1968). Thus, the question becomes whether the service of process, or lack thereof, was in substantial compliance with the SCPA to a degree sufficient to confer jurisdiction on the district court.

The trial court relied upon 12 O.S.Supp.1984, Ch. 2, App. Rule 10, of the Rules of the District Courts of Oklahoma, in approving the service upon Appellant and permitting a default judgment to be entered against him. Rule 10 provides, in pertinent part, that notice of taking default is not required where the defaulting party has not made an appearance and is not required in small claims actions even when the defaulting party has made an appearance. However, in general civil actions, 12 O.S.Supp.1988, § 2004(C)(2)(c) provides specifically for cases where process has been refused. Upon notice of refusal, a plaintiff has ten (10) days to send a copy of the summons, petition and notification to the defendant that despite such refusal, the case will proceed and default judgment will be rendered against him unless he appears to defend the suit. This notice provision establishes a critical distinction between those required in general civil actions, and those in small claims actions requiring actual notice under the SCPA, since the SCPA does not include a constructive notice provision in cases of refusal of service of process. A small claims defendant faces denial of due process unless the plaintiff complies with Section 1755 and personally serves him as required by the statute upon return of the undelivered process.

Section 1755 of the SCPA does...

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  • Habyarimana v. Kagame
    • United States
    • U.S. District Court — Western District of Oklahoma
    • 28 d5 Outubro d5 2011
    ...Court's holding in Shamblin v. Beasley, 967 P.2d 1200 (Okla.1998), and the Oklahoma Court of Civil Appeals decision in VanNort v. Davis, 800 P.2d 1082 (Okla.Civ.App.1990). This Court's reading of VanNort undermines the plaintiffs' suggestion that statutory requirements may be ignored. In th......
  • In re Adoption of Baby Girl B.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 11 d2 Fevereiro d2 2003
    ...exercised upon sufficient cause shown to vacate, modify, open or correct its earlier decision, or to refuse the relief sought. VanNort v. Davis, 1990 OK CIV APP 95, ¶ 9, 800 P.2d 1082, ANALYSIS AND REVIEW ¶ 22 Both appeals, as briefed here, concentrate on the issue of whether notice was ade......
  • First United Bank and Trust Co. v. Wiley
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 19 d3 Dezembro d3 2007
    ...exercised upon sufficient cause shown to vacate, modify, open or correct its earlier decision, or to refuse the relief sought. VanNort v. Davis, 1990 OK CIV APP 95, ¶ 9, 800 P.2d 1082, 1085. An order vacating said judgment will not be disturbed on appeal unless it clearly appears that the t......
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    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 24 d3 Setembro d3 2014
    ...or to refuse the relief sought. Ferguson Enterprises, Inc. v. H. Webb Enterprises, Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482 ; VanNort v. Davis, 1990 OK CIV APP 95, ¶ 9, 800 P.2d 1082, 1085. An order vacating said judgment will not be disturbed on appeal unless it clearly appears that the tri......
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