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Openhowski v. Mahone6/14/2000
is Court has held that the defendant's mere absence from the state does not activate the tolling provisions of SDCL 15-2-20. Burke v. Foss, 334 NW2d 861, 863 (SD 1983). The absence of the defendant from the state must be coupled with the plaintiff's inability to pursue his remedy because of the absence. Id. (citations omitted.)
[ ] Where provision is made by statute for substituted services of process, the provision makes the defendant as amenable to process as if he resided within the state and has the effect of nullifying any statute suspending the period of limitations. Id. at 863-64 (citing Busby v. Shafer, 75 SD 428, 66 NW2d 910 (1954)).
[ ] Service by publication is not available in all civil cases but may be used in the actions and circumstances specifically described in SDCL 15-9-8 to 15-9-15, inclusive. Service by publication was granted to Openhowski pursuant to SDCL 15-9-13. The statute allows a summons to be served by publication "where the defendant, being a resident of this state, has departed therefrom ... to avoid the service of a summons or keeps himself concealed therein with like intent." Thus, the statute allowed Openhowski to serve Alex despite his absence from the state. Substituted service by publication could have been made in Alex's absence sufficient to confer the jurisdiction required to support a personal judgment. See Burke, supra. Thus, under the facts of this case SDCL 15-2-20 did not toll the statute of limitations and the limitations period expired November 17, 1998.
[ ] There are no issues of material fact. We find that Openhowski failed to commence his personal injury claim within the time required by the applicable statutes of limitation.
[ ] Because of our resolution of this issue, we need not address the second issue raised by Grinnell.
[ ] The decisions of the trial courts denying summary judgment are reversed. The cases are remanded with instructions that a judgment dismissing each case be entered in favor of Alex and Grinnell.
[ ] MILLER, Chief Justice, and AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.
[ ] BASTIAN, Circuit Judge, for SABERS, Justice, disqualified.
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