WHITE STAG MANUFACTURING COMPANY v. MACE

WHITE STAG MANUFACTURING COMPANY v. MACE
1976 OK 130
556 P.2d 997
Case Number: 48345
Decided: 10/05/1976
Supreme Court of Oklahoma

WHITE STAG MANUFACTURING COMPANY, A CORPORATION, APPELLEE,
v.
TED R. MACE, A SOLE TRADER, D/B/A TED R. MACE & ASSOCIATES, APPELLANT.

Appeal from the District Court, Tulsa County, Robert G. Green, J.

CERTIORARI TO THE COURT OF APPEALS DIVISION NO. 1.

¶0 On appeal from the judgment of the District Court of Tulsa County, Oklahoma, Honorable Robert G. Green, Judge. The trial court refused to vacate and set aside a default judgment rendered against appellant. The court's jurisdiction to enter the judgment was based upon service of process upon appellant by an employee of plaintiff's attorney. The Court of Appeals held the service was valid and that the employee was not a party to or interested in the action within the purview of 12 O.S. 1971 § 158 . Appellant seeks certiorari.

CERTIORARI GRANTED. DECISION OF THE TRIAL COURT AND THE COURT OF APPEALS REVERSED.

Ungerman, Grabel & Ungerman, Tulsa, for appellee.

McElroy, Naylor & Williams by Bert C. McElroy, Tulsa, for appellant.

HODGES, Vice Chief Justice.

¶1 The question presented for our determination is whether service of summons by an employee of an attorney or a law firm representing a party in litigation is prohibited because he is a party interested in the action within the purview of 12 O.S. 1971 § 158 .

¶2 This court recently determined in Bramlett v. District Court of Marshall County, 557 P.2d 424 (Okl. 1976) that an attorney is interested in the action and is precluded from serving process in an action where he represents a party. Appellant contends there is no difference between an attorney or his employee serving process because they each are interested in the action because of the master-servant employee-employer relationship. We agree. In Bramlett we defined a person interested in the action as anyone whose "fortunes, professional reputation or personal well-being would be materially affected by the outcome of the action."

¶3 We therefore grant certiorari and the judgment of the trial court and decision of the Court of Appeals is reversed. However, the opinion herein is rendered prospectively and will have no application to any other causes of action now pending or to any judgments or decisions heretobefore decided.

¶4 REVERSED.

¶5 WILLIAMS, C.J., and DAVISON, BERRY, LAVENDER and DOOLIN, JJ., concur.

¶6 IRWIN, BARNES and SIMMS, JJ., dissent.

Footnotes:

1 Title 12 O.S. 1971 § 158 provides in pertinent part:

"The summons shall be served by the officer to whom it is directed, who shall endorse on the original writ the time and manner of service. It may also be served by any responsible citizen of the county not a party to or interested in the action, appointed by the officer to whom the summons is directed or by the court in which the action is brought. The authority of such persons shall be endorsed on the writ, and the return of service made by any person so appointed, or of any service made out of the State, shall be verified by oath or affirmation of the person making the service; . . ."

See also subsequent enactment, 12 O.S. 1976 Supp. §§ 158.1 , 158.2 , not applicable here.

2 Chicago, R.I. & P. Ry. v. Bennett, 36 Okl. 358, 128 P. 705, 707, 20 A.L.R. 678 (1912).