Davis v. Kressly
| Citation | 107 N.W.2d 5,78 S.D. 637 |
| Decision Date | 09 January 1961 |
| Docket Number | No. 9864,9864 |
| Parties | Mary Ellen DAVIS, formerly Mary Ellen Raney, and Carol Ann Raney, a minor, by her guardian, Robert Raney, Jr., Plaintiffs and Respondents, v. Lloyd T. KRESSLY, Defendant and Appellant. |
| Court | Supreme Court of South Dakota |
Homeyer & Robbins, Selby, for defendant and appellant.
Newell E. Krause, Lemmon, for plaintiffs and respondents.
In this action, wherein service of process upon defendant was by publication, he appeals from a default judgment, and from an order overruling his motion for an order vacating such judgment and for leave to answer.
The record as a whole reveals some background facts which should be briefly outlined. Defendant is the owner of a Perkins county ranch where he made his home prior to November 1951. He then entered into a contract with plaintiffs whereby he leased a Lemmon, Perkins county, South Dakota, business building for a monthly rental of $250. Thereafter he maintained his home in an apartment in that building until June 1954 when differences arose between the parties and he thereupon vacated the building and discontinued rental payment. By 1958 he had become a resident of Pennington county. In August of that year a summons and complaint was prepared by counsel for plaintiffs in an action by plaintiffs against defendant in circuit court of Perkins county wherein they sought to recover the amount of rent alleged then to be due under the described contract of lease. Failing in an attempt to make personal service, the sheriff of Perkins county made a substituted service under SDC 1960 Supp. 33.0808 at the dwelling on the Perkins county ranch by leaving a copy of the summons and complaint with the wife of defendant's son Robert. Subsequently, on November 10, 1958, the circuit court of Perkins county entered a default judgment against defendant based on that service for $14,535.25. Execution issued under this judgment and levy was made upon a herd of cattle on the ranch in possession of the son Robert. At this juncture counsel for defendant had his first contact with the matter as counsel for Robert. Predicated upon Robert's assertion that his father had not lived on the ranch for several years and his claim of ownership of the herd of cattle, plaintiffs' counsel released the levy. In November 1959 counsel for plaintiffs issued a new summons and complaint in an action by plaintiffs against defendant in the circuit court of Perkins county based on the same cause of action, and procured an order for service of process by publication as provided by SDC 1960 Supp. 33.0812(2). Predicated upon this constructive service, the circuit court of Perkins county, without expressly vacating the above described judgment, on January 20, 1960 entered a judgment by default against defendant for $18,595.05. Thereafter an order was entered vacating the judgment first described. The contention we are about to consider deals with the judgment of January 20, 1960, which we find it convenient to describe as the second judgment.
It is contended that the court erred in ordering service by publication and in entering the second judgment because due diligence to find the defendant within the state was not shown by the sole affidavit upon which the order for service was predicated.
The service by publication was sought under SDC 1960 Supp. 33.0812(2) authorizing such service
'Where the person on whom the service of the summons * * * is to be made cannot, after due diligence, be found within the state and that fact appears by affidavit to the satisfaction of the Court or a Judge thereof, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made * * *
'(2) Where the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors or to avoid the service of a summons or keeps himself concealed therein with like intent;'
The questioned affidavit upon which the order for publication and judgment rests became a part of the judgment roll, SDC 1960 Supp. 33.1711(1) and is presented for review by the appeal from the judgment. SDC 1960 Supp. 33.0710. The contention we are considering is made under such a direct attack upon the judgment in question.
The test of the sufficiency of the showing of due diligence, as evidenced by the assailed affidavit, is not whether it shows the use of all possible or conceivable means to find defendant within the state, but whether it reveals that all reasonable means have been exhausted in an effort to so find defendant. Cone v. Ballard, 68 S.D. 593, 5 N.W.2d 46; Berry v. Howard, 33 S.D. 447, 146 N.W. 577; Grigsby v. Wopschall et al., 25 S.D. 564, 127 N.W. 605, 37 L.R.A.,N.S., 206; Coughran v. Markley, 15 S.D. 37, 87 N.W. 2; and Opinion of Judge Shannon, 1 Dak. Appendix 500.
The statute SDC 1960 Supp. 33.0812, supra, requires a showing by affidavit to the satisfaction of the trial judge. And it has been pointed out that
In its order for constructive service the trial judge found 'that Lloyd T. Kressly, the Defendant, cannot, after due diligence be found within the State of South Dakota, and the Court finding that that fact appears by the Affidavit and files and records to the satisfaction of the Court * * *.'
As in all other instances of the review of the exercise of a legal discretion by the trial court, our function in this case is to determine whether there has been an abuse of discretion. In other words, we are not to determine whether the judges of this court would have made an original like ruling, but rather whether we think a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion. Cf. Slagle & Co. v. Bushnell, 70 S.D. 250, 16 N.W.2d 914, 156 A.L.R. 1070. Here, of course, the facts are not in conflict.
We pause to point out that in this direct attack upon the judgment below, we may not content ourselves with ascertaining whether the evidenced probative facts were merely sufficient to call into exercise the judicial mind in resolving the issue, as in a case involving a collateral attack (Cf. Coughran v. Markley, supra, and Vorburg v. Vorburg, 18 Cal.2d 794, 117 P.2d 875); we must determine whether, viewed in the light of the law and the circumstances, the finding and order of the trial court is supported by reason.
We do not reproduce the affidavit in full. We attempt to arrange the information contained therein dealing with the efforts of affiant to find defendant in South Dakota in chronological order.
The affiant, counsel for plaintiffs, was well acquainted with defendant and his affairs. He talked with him on the streets of Lemmon just before or just after he issued the summons and complaint, first described supra, in August 1958. Information came to him that defendant had been frequently seen on the streets of Rapid City, Pennington county, South Dakota. On August 7, 1958, he forwarded summons and complaint to Rapid City and they were placed in the hands of the sheriff of Pennington county for service. Late in August 1958 he also placed copies in the hands of the sheriff of Perkins county at Bison, South Dakota, and of the chief of police of Lemmon for service on defendant. The sheriff of Perkins county and the local banker were then of the opinion that defendant was making his home at the Perkins county ranch. On September 26, 1958 the sheriff of Perkins county made a dwelling house service on defendant at the ranch buildings by serving Mrs. Robert Kressly, wife of defendant's son. Thereafter a default judgment, based on such service, was rendered and an execution issued. A levy was made on cattle in Perkins county. On December 11, 1958 affiant conferred with Robert Kressly and his counsel, Fred J. Homeyer (the present counsel of defendant). A stipulation resulted releasing the levy. The stipulation read in part as follows:
'* * * the said Robert R. Kressly will presently use his best efforts to ascertain the whereabouts of the said Lloyd T. Kressly and notify him that judgment has been entered against him by default in the above action, and request that the said Lloyd T. Kressly promptly return to South Dakota for the purpose of taking such proceedings as he deems necessary and advisable to relieve him from said judgment by default and the effect thereof.'
On or about January 21, 1959 affiant was advised by the sheriff of Pennington county by mail:
On March 31, 1959 affiant received a letter from Mr. Homeyer of Homeyer & Robbins, defendant's counsel reading:
'Re: Raney vs. Kressly
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