Summary
The Supreme Court of South Dakota held that service by publication requires strict compliance with statutory requirements, including obtaining a court order before publication. The court affirmed dismissal of the plaintiffs’ personal injury action because they published the summons without first obtaining such an order, and actual knowledge or substantial compliance did not cure the defective service.
Holdings
- Service by publication requires strict compliance with the governing statutes, including a prior court order finding the statutory prerequisites satisfied; publishing the summons without such an order is insufficient as a matter of law.
- Substantial compliance, the defendant's actual knowledge of the impending lawsuit, and alleged conduct by the defendant or his attorney do not cure the failure to obtain the required court order before service by publication.
Questions Presented
- Whether plaintiffs could validly serve a summons by publication without first obtaining a court order authorizing publication.
- Whether substantial compliance, actual knowledge, or estoppel could excuse the failure to obtain the required court order.
Disposition
affirmed
Cases Cited (8)
- Schroeder v. City of New York, 371 U.S. 208, 212, 83 S. Ct. 279, 282, 9 L. Ed. 2d 255, 259 (1962)(followed)
- Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950)(followed)
- Wagner v. Truesdell, 1998 SD 9, 574 N.W.2d 627(distinguished)
- Lekanidis v. Bendetti, 2000 SD 86, 613 N.W.2d 542(followed)
- Openhowski v. Mahone, 2000 SD 76, 612 N.W.2d 579(followed)
- Jennings v. Montenegro, 792 So. 2d 1258 (Fla. Dist. Ct. App. 2001)(persuasive)
- Lewis v. Ramirez, 49 S.W.3d 561 (Tex. App. 2001)(persuasive)
- Mugavero v. Kenzler, 317 Ill. App. 3d 162, 251 Ill. Dec. 46, 739 N.E.2d 979 (2000)(persuasive)
Cited In (0)
No citing cases on record yet.
Court Document
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