Baker v. Sihsmann

• Court: Indiana Appellate Court
• Writing for the Court: ROBERTSON
• Citation: Baker v. Sihsmann, 315 N.E.2d 386, 161 Ind.App. 260 (Ind. App. 1974)
• Decision Date: 14 August 1974
• Docket Number: No. 1--1273A210,1--1273A210
• Parties: Dallas BAKER, Defendant-Appellant, v. Bernard SIHSMANN et al., Plaintiffs-Appellees.

Page 386

315 N.E.2d 386

161 Ind.App. 260

Dallas BAKER, Defendant-Appellant, v. Bernard SIHSMANN et al., Plaintiffs-Appellees.

No. 1--1273A210.

Court of Appeals of Indiana, First District.

Aug. 14, 1974.

Rehearing Denied Sept. 5, 1974.

John T. Sharpnack, Columbus, for defendant-appellant; Sharpnack, Bigley & David, Columbus, of counsel.

Cline, King & Beck, Columbus, for plaintiffs-appellees.

ROBERTSON, Presiding Judge.

The defendant-appellant Baker, a nonresident motorist, is appealing from a default judgment taken against him by the plaintiff-appellees, the Sihsmanns.

The several issues involve the computation of time for a nonresident motorist served process pursuant to the Indiana Nonresident Motorist Statute, IC 1971, 9--3--2--1 (Burns Code Ed.). Under the facts of the case we reverse and remand.

The facts show Sihsmanns filing suit on May 30, 1973, against Baker for damages arising from an auto accident. The Sihsmanns elected to serve Baker through the Indiana Secretary of State, who received the summons on the 1st of June. The Secretary of State's office mailed it to Baker on the 4th of June. Baker received the summons on the 11th of June. The Sihsmann's defaulted Baker on the 3rd of July and took judgment against him two days later. Baker appeared by counsel on the 20th of July.

The summons sent to Baker was a printed form which, inter alia, stated he had twenty days, beginning the day after receipt, to respond to the complaint. It is that wording which we believe violates 14th Amendment due process as Baker contends.

The adequacy of due process in a substituted service of process situation is described as being:

'. . . dependent on whether or not the form of substituted service provided . . . is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard. If it is, the traditional notions of fair play and substantial justice (citations omitted) implicit in due process are satisfied.' Milliken v. Meyer (1940), 311 U.S. 457, at 463, 61 S.Ct. 339, at 342, 85 L.Ed. 278.

We acknowledge the propriety of Sihsmann's argument that service by means of the Indiana Nonresident Motorist Statute does not necessarily violate 14th Amendment due process. That position may have prevailed in this appeal had the wording of the summons, for example, advised Baker that time to respond would be computed from the day after service on his agent, the Secretary of State. However, the effect of the summons was to mislead Baker regarding the time to respond to the complaint.

Baker next argues that in addition to the twenty days specified in the summons he is also entitled to an additional three days because the summons was served by mail (I.R.T.P. 6(E))...