(dissenting).
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 “served.”
Per the affidavit of Attorney Scott Heide-priem, Donita Bolks was a “Special Deputy Sheriff.” There is no such office in this state. Therefore, the affidavit was another mistake of law.
As denoted by pages 11-12 of the settled record, no Return of Service was attached to the Affidavit of Default, even though the attorney’s affidavit expressed it was “attached hereto and incorporated herein by this reference.” Thus, the third error of law. A circuit judge must be shown a “Return of Service” so that he or she knows that there is personal jurisdiction. This is critical. In the affidavit of default, the attorney expressed a “Special Deputy Sheriff’ served defendants (not true) “as is more fully set out in the Return of Service which is attached hereto and incorporated herein by this reference” (not true).
When the “Return of Service” did appear, it was captioned “Minnehaha County.” Not true. It was in Lincoln County.
The requirement of personal service of a summons is jurisdictional — and our statutes supporting same are to be strictly construed, not liberally construed. Matter of Gillespie, 397 N.W.2d 476 (S.D.1986).
If service is defective, a dismissal for want of jurisdiction lies upon motion of a defendant or sua sponte by the court. Pearson v. Pearson, 312 N.W.2d 34 (S.D.1981).
Here, counsel for plaintiffs honestly believed that Donita had “served” the defendants. Unequivocally, under oath, counsel so expressed:
I caused a Summons and Complaint to be served by Donita Bolks, a Special Deputy Sheriff upon each of the Defendants on June 26, 1993 as is more fully set out in the Return of Service which is attached hereto and incorporated herein by this reference.
Counsel, at the time of the sworn affidavit, relied upon Donita’s status as a “Special Deputy Sheriff’ who “served” the defendants. Nothing was expressed about an “Admission of Service” and, thus, not relied upon, to obtain a default judgment.
This service was an ineffectual hybrid. Defendants should have an opportunity to defend on the merits. In my opinion, we are not elevating the quality of law by approving the service of legal documents with this type of procedure. Without valid service of process, the trial court has no jurisdiction to act. Hartley v. Jerry’s Radio & Electric Shop, S.D. 87, 48 N.W.2d 925 (1951). One may research over 100 years of decisions and find the law has remained the same. No proper service. No jurisdiction. Ayers, Weatherwax & Reid Co. v. Sundback, 5 S.D. 31, 58 N.W. 4 (1894). Therefore, in all due respect for the other Justices to assert their opinions, I must respectfully dissent.
I am authorized to state that Justice AMUNDSON joins this dissent.