specially concurring.
I agree that this case must be reversed. Unfortunately, it does not appear that the appellant perceived the true reason that it was entitled to a reversal. While generally I am reluctant to treat with different issues from those which the parties present to the court, in this instance the problem is one of jurisdiction, and the court is entitled to raise that question of its own motion.
This case must be reversed because the trial court did not acquire jurisdiction over the person of the defendant corporation. The majority opinion notes, and the record is clear, that the registered agent of Midway Oil Corporation was Gertrude Morrison and the registered office was 104 South Second Street, Casper, Wyoming. The only matter in the record to suggest that Gertrude Morrison could not be served is the return on the summons which stated: “After due and diligent search we were unable to locate Gertrude Morrison, agent for Midway Oil Corp. in Natrona County, Wyoming 4-4-85. (Mileage $.69)” While it is understandable that the trial court does not have an obligation to check the identity or address of a registered agent for a corporation, yet when the record demonstrates that the address of the registered *348office was not given to the sheriff and the diligence of the sheriffs search is dubious, a conclusion that the court did not acquire jurisdiction may be required because of a distinct difference in the facts from those found in U.S. Aviation, Inc. v. Wyoming Avionics, Inc., Wyo., 664 P.2d 121 (1983).
What followed in this instance was service upon the secretary of state pursuant to § 17 — 1—111(b), W.S. 1977 which provides in part:
“Whenever a corporation shall fail to appoint or maintain a registered agent in this state, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the secretary of state shall be an agent of such corporation upon whom any such process, notice or demand may be served. * * * 11
This statute, properly construed, demands that before service of process can be made upon the secretary of state, one of two conditions precedent must be satisfied. Either the corporation must have failed to appoint or maintain a registered agent in this state, which is not suggested by the record in this instance, or the registered agent of the corporation after the exercise of reasonable diligence must not be found at the registered office. On the record in this case there is nothing to indicate reasonable diligence because the address of the registered office never was furnished to the sheriff. Consequently, I would hold that, in the absence of the satisfaction of one of the two conditions precedent, the appellees never were entitled to use the secretary of state as an agent upon whom process directed to Midway Oil Corporation could be served.
In the absence of some service on a proper agent, the court did not acquire jurisdiction over the appellant. The absence of proper service results in a void judgment unless the defendant submitted to the jurisdiction of the court. Bryant v. Wybro Federal Credit Union, Wyo., 544 P.2d 1010 (1976). If the judgment is void, the trial court does not have discretion to refuse relief when it is sought in accordance with Rule 60(b) W.R.C.P. 2-H Ranch Co., Inc. v. Simmons, Wyo., 658 P.2d 68 (1983). To the same effect is R.L. Manning Co. v. Millsap, Wyo., 687 P.2d 252 (1984). In this case the default judgment should have been set aside and the case should have been dismissed because the court did not have jurisdiction over the person of the defendant.
Were I to concede that the questionable return of the sheriff showing that the registered agent could not be found in Natro-na County was sufficient to justify service upon the secretary of state, I still would agree to reverse because of an abuse of the discretion of the trial court. Section 17-1-111(b) goes on to say:
“In the event any such process, notice or demand is served on the secretary of state, he shall immediately cause one (1) of the copies thereof to be forwarded by registered mail addressed to the corporation at its registered office. * * *”
This was not done, but instead the copy was mailed to the last address shown upon an annual report. The registered office is not changed by the filing of an annual report. Section 17-1-110, W.S.1977 explains how that is to be accomplished. While the court may have acquired jurisdiction because of service upon the secretary of state, the failure to comply with the statute would distinctly limit the extent of the court’s discretion in refusing to grant relief under Rule 60(b), W.R.C.P. I would hold if that were the issue that there was an abuse of discretion in refusing to set aside the default judgment when it became apparent that the office of the secretary of state had not complied with the statute.
Beyond that it seems to me there is no need to address nor justification for addressing the issues relating to damages and to the return date in this case. The parties must start over and bring the action anew. I do not see that the question of the proper way to address damages in a default proceeding would be likely to arise. Presumably, a proper answer would be filed on time if service were made on the defendant.