Saxton v. Davis

The trial court properly dismissed the plaintiff's injury suit because he failed to exercise the greatest possible due diligence in serving the defendant outside of the statute of limitation after learning of a problem with service.

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Following an automobile collision, Randall Saxton sued Samuel Davis, seeking money damages. Saxton dismissed the complaint without prejudice and filed a renewal action. After Saxton was unable to locate Davis, the trial court ordered service by publication, which service was perfected. Davis then answered the suit, asserting insufficient service of process as a defense. Davis moved to dismiss the complaint, and the trial court granted the motion. Specifically, the trial court found that Saxton failed to obtain in personam jurisdiction over Davis and that Saxton was guilty of laches, and this appeal ensued. For reasons that follow, we affirm. The relevant facts demonstrate that Saxton filed suit against Davis in June 1999, and he also served the complaint on his uninsured motorist insurer, Auto Owners Insurance Company “Auto Owners”. Davis failed to timely file his answer, and a default judgment was issued against him on the issue of liability. However, with Saxton’s consent, the trial court vacated the default judgment.

Davis moved shortly thereafter, and neither Saxton nor Auto Owners, who had undertaken Davis’ defense, was able to locate him for the purpose of taking his deposition. According to Saxton, in April 2001, the trial court granted a continuance to allow the parties to locate Davis. When Saxton sought a second continuance in July 2001, Auto Owners opposed the request, citing, in part, its inability to locate Davis “despite several skip trace efforts.” Evidently, the trial court denied Saxton’s request for a continuance.

Saxton v. Davis

The trial court properly dismissed the plaintiff's injury suit because he failed to exercise the greatest possible due diligence in serving the defendant outside of the statute of limitation after learning of a problem with service.

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