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Hawkins v. Wilbanks

Service by publication cannot serve as a foundation for an in personam judgment against a tortfeasor.

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Cameron Alexander Hawkins appeals, pursuant to the grant of interlocutory appeal, the denial of his motion to dismiss the renewal suit filed against him by Elizabeth Wilbanks and other family members the Wilbanks as a result of an automobile wreck which occurred on July 1, 1993 between a truck driven by Hawkins and the Wilbanks’ car.

The Wilbanks’ initial action was filed on June 28, 1995, shortly before the running of the statute of limitations. On October 26, 1996, the court granted Wilbanks’ Motion for Appointment of Agent to serve Hawkins, but that effort was apparently unsuccessful. On April 3, 1998, the Wilbanks’ Motion for Service by Publication filed that date was granted. In support of that motion, the Wilbanks submitted the affidavit of their attorney which states only that an attempt was made to serve Hawkins at his father’s home, that a special investigator had been unable to locate Hawkins, and that “affiant believes said Defendant is avoiding service of process.” The affidavit of the publisher was filed reflecting publication four times in April 1998. By order of September 29, 1998, the trial court found that service by publication was “declared perfected.” On March 1, 1999, the Wilbanks’ Voluntary Dismissal Without Prejudice was filed.

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