Arbach v. Gruba

• Court: South Dakota Supreme Court
• Writing for the Court: BIEGELMEIER
• Citation: Arbach v. Gruba, 86 S.D. 591, 199 N.W.2d 697 (S.D. 1972)
• Decision Date: 02 August 1972
• Docket Number: No. 10961,10961
• Parties: Richard ARBACH, Plaintiff and Respondent, v. Eddie GRUBA, Defendant, and Joanne Gruba, Defendant and Appellant.

Page 697

199 N.W.2d 697

86 S.D. 591

Richard ARBACH, Plaintiff and Respondent, v. Eddie GRUBA, Defendant and Joanne Gruba, Defendant and Appellant.

No. 10961.

Supreme Court of South Dakota.

Argued May 9, 1972.

Decided Aug. 2, 1972.

Holland & Brantseg, Sisseton, for plaintiff and respondent.

Charles B. Kornmann, of Voas, Richardson, Groseclose & Kornmann, Aberdeen, for defendant and appellant.

BIEGELMEIER, Judge.

This is an action for damages for personal injuries resulting from an automobile accident which occurred June 15, 1967. A summons dated May 25, 1970 and a complaint based on that claim, subscribed by plaintiff's attorneys, were delivered to the sheriff of Roberts County for service on defendants. We are concerned only with defendant Joanne Gruba, hereafter for convenience sometimes referred to as Joanne. The sheriff signed a certificate that he received these papers on May 26, 1970, and served them on defendant Joanne Gruba in that county on May 26, 1970 by delivering to and leaving with her, personally, true copies thereof. This certificate with the original summons and complaint was filed with the clerk of courts on June 9, 1970. The fact was, however, that the sheriff did not serve copies on Joanne on that day, personally, or in any manner authorized by RCP 4, SDCL 15--6--4. This simple question of lack of service by reason of later proceedings became entangled in a complex record, 78 papers of 191 pages as shown by the clerk's index, ending in a default judgment for plaintiff of $10,000 damages and costs as a result of a hearing where Joanne's attorney was allowed to appear without permission to be heard on the merits as to Joanne's claimed defenses.

Based on the assumed May 26, 1970 service of process, plaintiff's attorney on September 18, 1970 executed and filed an affidavit of default alleging personal service of the summons and complaints on defendants on May 26, 1970, and that defendants had 'not appeared' in the action, were, and should be adjudged to be, in default. On September 23, 1970 these facts came to the attention of Joanne's present attorneys who, the next day under a special appearance challenging the jurisdiction of the court and supported by affidavits of Joanne, her husband and her counsel, made a motion to quash the service of the process on Joanne. Plaintiff contested this motion and by affidavit made a motion to strike the special appearance.

A hearing was held on September 24, 1970 upon the affidavits and oral testimony of the sheriff and the facts of lack of legal service were undisputed. It appeared the judge at the September 24, 1970 hearing orally indicated his decision would be to quash the purported service of process on Joanne. Anticipating this, the record shows another sheriff's certificate again stating he received the summons and complaint on May 26, 1970, and that he personally served them on Joanne Gruba on September 26, 1970 by delivering to and leaving with her true copies thereof. Returning to the September 24, 1970 hearing, the circuit court, on October 13, 1970, entered written findings of fact, conclusions of law and an order adjudging the service of process on Joanne to be null and void and quashed, set aside and vacated it. These were filed October 15, 1970. It will be noted this order was entered after the 'second' process was served, but it did not identify the date of the service of process quashed. It appears in an exchange of correspondence between counsel after the September 26th service of process that no mention was made of this later and second service.

On October 29, 1970, plaintiff's attorney executed another affidavit of default based on the September 26, 1970 service of process on Joanne. The record shows a written Separate Answer of Joanne Gruba dated and served on plaintiff's attorneys on October 30, 1970. Within a few days thereafter plaintiff made motions to strike this answer, adjudge Joanne to be in default and for a default judgment; defendant Joanne made a motion to relieve her of default and permit her to answer the complaint.

Defendant Joanne Gruba's Separate Answer set out meritorious defenses; it denied defendant was negligent, alleged plaintiff's injuries occurred as the result of an unavoidable accident, that the statute of limitations was a bar, and that plaintiff's claim was barred as the accident occurred June 15, 1967, more than three years prior to the commencement of the action. On November 19, 1970, the trial court adjudged Joanne to be in default, denied her motion to be relieved of the default, struck her answer, and directed plaintiff proceed to proof of his complaint and fixed December 29, 1970 as the time plaintiff appear for that purpose. The record shows further motions and proceedings which we need not detail, except they ended with the judgment against defendant Joanne.

This opinion will not attempt to set out all the contents of the affidavits or the record of the several motions and proceedings, but will be limited to that part necessary to decision. At the outset the record here is similar to that before the court in Davis v. Interstate Motor Carriers Agency, 1970, 85 S.D. 101, 178 N.W.2d 204, and the law applicable to this appeal may be found in that opinion. We refer to it without extending this opinion by quoting from or commenting on the questions there decided.

Read in the light of Davis, we conclude the record shows excusable neglect for the failure of Joanne to appear and answer the complaint served on September 26, 1970 within the 30 days allowed, and that the answer due October 26, 1970, served within four days after it was due and before a judgment had been entered, should have been permitted to stand. It appears that while Joanne caused copies of the papers to be delivered to an employee of a bank that was agent for her insurance company, the company did not receive these copies and it was thought they were lost. In August a claims adjuster, making a check in that area to see if any action had been started, obtained copies of the papers of the purported May 26th service and the action was referred to the insurance company's attorneys who advised the company that this was improper service. This service was thereafter vacated by court order and the company's attorneys had reason to believe that plaintiff intended to appeal from that order. Later, on September 30th, the company received from its agent copies of the summons and complaint served September 26, 1970, but because the company had not received copies of the May 25th papers and as the enclosed copies were identical to the May 25, 1970 summons and complaint with the same date thereon, the agent advised the company that these were the papers which...