Mueller v. Zelmer
| Decision Date | 26 May 1994 |
| Docket Number | No. 18555-,18555- |
| Citation | 525 N.W.2d 49 |
| Parties | Kent MUELLER and Lynette Mueller, Plaintiffs and Appellees, v. Mel ZELMER and Zelmer, Inc., a South Dakota Corporation, Defendants and Appellants. a. . Considered on Briefs on |
| Court | South Dakota Supreme Court |
Scott N. Heidepriem of Johnson, Heidepriem, Miner & Marlow, Sioux Falls, for plaintiffs and appellees.
Jeff Masten of Ulmer, Hertz & Bertsch, P.C., Menno, for defendants and appellants.
Mel Zelmer ("Zelmer") and Zelmer, Inc. appeal from an order denying their motion to vacate a default judgment. We affirm.
Donita Bolks ("Bolks") is a resident of Minnehaha County who serves papers for lawyers. Johnson, Heidepriem, Miner and Marlow, on behalf of Kent and Lynette Mueller ("Mueller"), had her serve a summons and complaint upon Zelmer and Zelmer, Inc., a South Dakota corporation.
Bolks went to Zelmer's home in Lincoln County. She presented him with the two summons and complaints. Zelmer signed two documents which were captioned "Admission of Service," as follows:
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* PLAINTIFF: Kent Mueller and
* Lynette Mueller
*
ADMISSION OF SERVICE * DEFENDANT: Mel Zelmer and
* Zelmer, Inc. a South Dakota
* Corporation
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
SERVICE OF THE ATTACHED: Summons, complaint
BY RECEIPT OF TRUE AND CORRECT COPIES THEREOF IS ACKNOWLEDGED THIS: 26th DAY
OF: June, 19:93 AT: RR 3 Box 190, Sioux Falls
/s/ Mel Zelmer
----------------------------------------------------
(RECIPIENT SIGNATURE)
/s/ Donita Bolks
----------------------------------------------------
(SERVER SIGNATURE)
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Attorney Scott Heidepriem filed an affidavit of default and obtained a default judgment against Zelmer and Zelmer, Inc.
Zelmer filed a motion to vacate the default judgment along with a supporting affidavit, and made a special appearance contesting the court's jurisdiction. This affidavit acknowledged Zelmer was the registered agent for service of process for Zelmer, Inc. Zelmer contended service was ineffective because Bolks was not an elector of Lincoln County. Therefore, there was no personal jurisdiction over Zelmer and Zelmer, Inc. Muellers argue that by signing the admissions of service Zelmer admitted he was, in fact, served and this was sufficient to give the court jurisdiction over both Zelmer and Zelmer, Inc.
The trial court found "the Admission of Service was sufficient to grant jurisdiction as to both Mr. Zelmer and Zelmer, Inc., since it was a signed acknowledgement or admission of the service of the Summons and Complaint." In its order denying the motion to vacate the judgment, the court noted that admissions of service complied with SDCL 15-6-4(g)(3).
Summonses "shall be served by delivering a copy thereof." SDCL 15-6-4(d). SDCL 15-6-4(c) * provided the county's sheriff or deputy, or constable, or a person who is an elector of the county may make service of summonses.
Bolks claims to be a "Special Deputy Sheriff" of Minnehaha County. There is no such office. See SDCL ch. 7-12. She is simply a resident of Minnehaha County who is employed by Express Attorney Services, a firm that serves documents at the request of lawyers. She was not a party to the action between Mueller and Zelmer. Thus, because she was not a resident of Lincoln County where the documents were to be served, she did not have the authority to serve process in Lincoln County under SDCL 15-6-4(d).
Muellers contend Zelmer's signed admissions of service constitute service and are sufficient to grant personal jurisdiction. Zelmer and Zelmer, Inc. contend the admissions of service are nothing more than a receipt, that they were not in the statutory form prescribed by SDCL 15-6-4(j) and, as a result, were ineffective to commence the action and subject them to the court's jurisdiction. That statute has no application to this case, however, as it deals only with the form of notice and admission of service by mail.
When there is personal service:
Proof of the service of the summons and complaint or of any pleading, process, or other paper must state the time, place, and manner of such service or of publication and mailing and must be made as follows:
* * * * * *
3) The written admission of the party or his representative upon whom service might have been made for such party[.]
SDCL 15-6-4(g)(3). The admissions of service in this case meet these requirements.
Zelmer signed two identical documents entitled "Admission of Service," one to acknowledge receipt of the summons and complaint by himself personally and one as agent for Zelmer, Inc. Both stated the time and place at which receipt of the documents was acknowledged, and showed that the summons and complaint had been received from Bolks. These are the requirements of the statute, and Zelmer's signature on the documents constitutes his valid and binding admission of service.
Zelmer contends the admissions of service were insufficient to confer personal jurisdiction because, while he acknowledged receiving the summons and complaint, Bolks, the process server, had no statutory authority to serve a summons in Lincoln County. He argues that, because statutory service requirements are in derogation of common law rights, they must be strictly construed and compliance with them must be exact. See Nolan v. Nolan, 490 N.W.2d 517 (S.D.1992). However, Zelmer's argument is misplaced.
This is not a situation where the summons itself fails to meet statutory requirements, or where a summons and complaint were delivered by a person without authority to serve process and the recipient did not admit service. See Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982) (); Brown v. State, 195 Ga.App. 872, 395 S.E.2d 73 (Ga.Ct.App.1990) (). While Bolks lacked authority to serve the documents, Zelmer was not compelled to admit service of the documents by signing the admissions of service. But, having done so, Zelmer and Zelmer, Inc. are bound by their admissions of service. As a result, the trial court had personal jurisdiction over Zelmer and Zelmer, Inc., and the power to enter a default judgment against them.
Accordingly, the decision of the trial court is affirmed.
KONENKAMP, J., not having been a member of the Court at the time this case was submitted, did not participate.
This case is a civil appeal springing from a denial by the trial court to set aside a default judgment. It is a well known axiom of law that the law abhors defaults. National Surety Corp. v. Shoemaker, 86 S.D. 302, 195 N.W.2d 134, 138 (1972). Zelmer should be permitted to defend.
According to two documents, upon which the trial court relied, Donita was a "server;" she was not and could not be as she was a resident of Minnehaha County and not Lincoln County where Zelmer was "s...
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