Rosebud Federal Credit Union v. Mathis Implement, Inc.
Decision Date | 15 February 1994 |
Docket Number | No. 18451,18451 |
Citation | 515 N.W.2d 241 |
Parties | ROSEBUD FEDERAL CREDIT UNION, Plaintiff and Appellant, v. MATHIS IMPLEMENT, INC., Defendant and Appellee. . Considered on Briefs |
Court | South Dakota Supreme Court |
Donald E. Covey, Winner, for plaintiff and appellant.
Mathis Implement, Inc., pro se appellee.
Rosebud Federal Credit Union (Rosebud) commenced an action against Mathis Implement, Inc. (Corporation) by serving a Summons and a Complaint upon Corporation's registered agent, Richard Mathis (Mathis). 1 Mathis signed and filed a pleading entitled "Special Appearance for the Limited Purpose of Answer, Motion to Dismiss and Constructive Notice and Demand." Typed beneath Mathis' signature was "Mathis Implement by Richard Mathis PO Box 571 Winner, SD 57580." The pleading stated:
COMES NOW the above named party of interest, Mathis Implement and submits an answer to the purported complaint and appears by Special Appearance for the Limited Purpose Of making a Motion To Dismiss and to give Constructive Notice and Demand to the purported plaintiffs, et al.
The pleading is then divided into segments entitled Answer, Motion to Dismiss, Facts, and Constructive Notice and Demand.
Rosebud filed a Motion to Strike Answer, Motion to Dismiss and Motion for Default Judgment. According to the Affidavit in Support of Motion for Default Judgment:
2. The Summons and Complaint were served upon the Defendant more than thirty days prior to the date of this Affidavit. Since the date of service no appearance or responsive pleading has been made or served on behalf of Mathis Implement, Inc., a South Dakota corporation, other than the purported pleadings served with the name of Richard L. Mathis for Mathis Implement, Inc.
3. At the hearing on the Motion for Default Judgment, Plaintiff's evidence will prove up the allegations of the Complaint.
Mathis filed an Affidavit and an additional Answer and Motion to Dismiss. According to Mathis' Affidavit, he has a personal interest in the matter and as such, is authorized to proceed and defend his individual interests.
A Motions Hearing was held on August 11, 1993. The trial court denied Mathis' Motion to Dismiss and Rosebud's Motion for Default Judgment. According to the court's Findings of Fact, Mathis filed an answer on behalf of Corporation within the 30 days allowed by the Summons and Complaint. Rosebud filed a Petition for Permission to Take Discretionary Appeal, which was granted.
Rosebud argues on appeal that because Mathis is not an attorney, licensed to practice law in the State of South Dakota, he may not appear for, represent, and defend Corporation in any phase of litigation in the courts of record in South Dakota. A review of the Motions Hearing, however, indicates that this issue is not before this court because Mathis did not appear for, represent, or defend Corporation, nor does he desire to do so. The Motions Hearing transcript provides in part as follows:
....
....
Clearly, Mathis did not represent Corporation at the Motions Hearing, 2 nor is he willing to do so at trial. Rather, he appeared for, represented, and defended himself and his interests in Corporation as a 50% stockholder, even though he was not a named defendant. The trial court was clearly erroneous in finding that Mathis filed an answer or appeared on behalf of Corporation. Further, the trial court seemed to permit Mathis to appear as a party without any application for intervention under SDCL 15-6-24(a). 3 This was also error.
Under SDCL 15-6-4(a), 15-6-55(a), and 15-6-55(b) "[o]nce proper service of process is made and proof thereof filed, the court is authorized to enter a default judgment against a defendant when the record shows by affidavit of default that [defendant] has been served, but has failed to plead or otherwise defend the action within thirty days of service[.]" Adam v. Van Buren, 315 N.W.2d 319, 320 (S.D.1982). Corporation failed to answer or defend within thirty days of service upon its registered agent, Mathis, and Rosebud filed the necessary Affidavit in Support of Motion for Default Judgment. The trial court's Order denying Rosebud's Motion for Default Judgment is reversed. No additional matters are properly before this court at this time.
I agree the circuit court's order denying Rosebud's motion for default judgment should be reversed, but write specially to assert that in South Dakota an individual who is not a licensed attorney may not appear pro se to represent a corporation of which he is a director, officer or shareholder.
In spite of protestations he was not representing Mathis Implement, Inc., Richard Mathis was neither a named defendant nor had he been made a party through intervention under SDCL 15-6-24(a). 1 Mathis' interest at the hearing was as a shareholder of fifty percent of the stock of the corporation of which he is the registered agent. He was attempting to defend that corporate interest by professing he was representing only himself and appearing pro se. Where Richard Mathis accepted the benefits of corporate status in South Dakota, he also accepted the burdens, including the need to hire counsel to represent the corporation in court.
The overwhelming majority of jurisdictions have determined that in legal proceedings a corporation may be represented only by a licensed attorney. Osborn v. Bank of United States, 22 U.S. 738, 9 Wheat 738, 6 L.Ed. 205 (1824); Hawkeye Bank and Trust v. Baugh, 463 N.W.2d 22 (Iowa 1990); Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753 (Minn.1992); Jay M. Zitter, Annotation, Propriety and Effect of Corporation's Appearance Pro Se Through Agent Who is Not Attorney, 8 A.L.R. 5th 653 (1992). 2...
To continue reading
Request your trial-
Sunflour RR, Inc. v. Paulson
...Heartland Organic Foods, Inc., 2003 SD 45, ¶ 27, 661 N.W.2d 719, 726, n.4 (citing Rosebud Federal Credit Union v. Mathis Implement, Inc., 515 N.W.2d 241, 244 (S.D.1994) (Miller, C.J., concurring specially)). Although he was entitled to appear pro se on his own behalf, as an officer and shar......
-
Wold Family Farms v. HEARTLAND FOODS, 22767.
...pro se to represent a corporation of which he is a director, officer or shareholder. See Rosebud Fed. Cr. Union v. Mathis Implement, 515 N.W.2d 241, 244 (S.D.1994)(Miller, C.J., concurring specially). ...
-
Ladson v. BPM CORP.
...Inc. v. Heartland Organic Foods, Inc., 2003 SD 45, ¶ 27, 661 N.W.2d 719, 726 n. 4 (citing Rosebud Fed. Cr. Union v. Mathis Implement, 515 N.W.2d 241, 244 (S.D.1994) (Miller, C.J. concurring specially)). In this case, Patten filed BPM's answer and counterclaim on behalf of the corporation as......