Appellant, D.L. McDaniel d/b/a Aetna Oil Company (McDaniel) held an oil and gas lease on property owned by the plaintiff-appellee Johnson. In September 1974, Johnson filed an action seeking to cancel this lease for non-production. He was represented by an attorney of a multi-member firm. The suit named seventeen defendants including McDaniel and Target Drilling Company, a suspended corporation, with which McDaniel had once been associated.
On the same day plaintiff filed affidavits for service by publication on all defendants and mailed a summons to McDaniel at an Oregon address. The summons was returned unclaimed.
On November 11, 1974, default judgment was entered against all defendants.
While in the hospital in Tulsa, in December of 1974, McDaniel first learned of the default judgment through a conversation with his pumper on the lease. He immediately telephoned another member of the above mentioned law firm, who had previously represented him, to inquire about the judgment. Upon his release from the hospital he went to Enid to investigate further. It was at this time, upon the advice of the member of the firm, that he retained other counsel.
In March 1975, McDaniel filed a pleading in the above mentioned cause, entitled "Entry of Appearance, Motion to Vacate Judgment and Application for Extension of Time in which to Answer" pursuant to 12 O.S. 1971 § 176.
12 O.S. 1971 § 176 must be liberally construed in furtherance of justice. It does not actually contemplate vacation of a default judgment, but rather the opening up of the judgment so that a defendant may be let in to defend.
Under this statute, McDaniel is entitled to have the judgment opened if he had no actual notice of this suit. It is academic that certain notice procedures are necessary in order for due process requirements to be met. McDaniel relies on the principles set forth in Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okl. 1968) wherein we annunciated the standards necessary for service by publication to be effective. These standards were promulgated by the United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950). In Bomford at p. 718 we stated "(t)he general rule that emerges from Mullane and subsequent cases is simple: A state cannot invest itself with, and exercise through its courts, judicial jurisdiction over a person in a proceeding which may directly and adversely affect his legally protected interests, unless a method of notification is employed which is reasonably calculated to give him knowledge at a meaningful time and in a meaningful manner of the attempted exercise of jurisdiction and an opportunity to be heard." McDaniel submits these due process requirements were not met.
12 O.S. 1974 Supp. Ch. 2, App. Rule 16 provides for procedural protective measures that must be followed before a default judgment may be taken against a defendant served solely by publication. The pertinent parts of this rule are as follows:
There is nothing in the record before us that evidences a compliance with this rule. Apparently none of the suggested sources enumerated by the rule were utilized in attempting to locate McDaniel. A member of the law firm representing Johnson, acknowledged that he could have located McDaniel if he had checked his files. The journal entry entered at time of default does not reflect the court heard or found any evidence of the exercise of due diligence in giving McDaniel notice of the suit. The paragraph suggested by Rule 16 quoted above, was not present in the journal entry.
In his brief, Johnson admits the sole issue is whether McDaniel had actual notice of the pendency of the litigation. Although trial court found McDaniel did have actual notice of the suit, an examination of the testimony shows there is absolutely no evidence McDaniel had any notice at all prior to the time the default judgment was taken.
Where names and addresses of adverse parties are known or are easily ascertainable, notice of pending proceedings by publication service alone, is not sufficient to satisfy the requirements of due process under federal or Oklahoma constitutions. All sources must be exhausted in a meaningful pursuit of information as to a defendant's whereabouts.
The summons was returned unclaimed and no further effort was made to notify McDaniel or to obtain his address or phone from the law firm's files. The requirements of due process were not met.
This decision on the issue of notice is dispositive of the second petition in error so it is unnecessary for us to consider the allegations raised therein.
The trial court is reversed and the proceeding is remanded to the trial court with instructions to open the prior judgment and allow McDaniel to defend.
DAVISON, WILLIAMS, BERRY, BARNES and SIMMS, JJ., concur.
IRWIN, J., dissents.