Adams v. . Packer

138 S.E. 405, 194 N.C. 48, 1927 N.C. LEXIS 16

• Court: Supreme Court of North Carolina
• Decided: June 10, 1927
• Status: Published

Opinion

Stacy, C. J.,

after stating tbe case: In the absence of personal service duly had on a nonresident defendant in an action in personam, substituted service by publication is effectual only when property in this State, belonging to the defendant, is brought under the control of the court by some appropriate process, and even then such service extends only to the property seized, or brought under control of the court, as no personal judgment can be rendered in such a case. Everitt v. Austin, 169 N. C., 622; Winfree v. Bagley, 102 N. C., 515.

Speaking to the subject in Long v. Ins. Co., 114 N. C., 466, Clark, J., delivering the opinion of the Court, said: “Where the enforeemejit of a debt or other personal liability is sought by subjecting property of the nonresidents, the jurisdiction is based upon the seizure of the property, and only extends to the property attached.”

And in Hess v. Pawloski, 71 L. Ed., ..., decided 16 May, 1927, it was said: “The process of a court' of one state cannot run into another and summon a party there domiciled to respond to proceedings against him. Notice sent outside the State, to a nonresident is unavailing to give jurisdiction in an action against him personally for money recovery. Pennoyer v. Neff, 95 U. S., 714. There must be actual service within the State of notice upon him, or upon some one authorized to accept service for him. Goldey v. Morning News, 156 U. S., 518. A personal judgment rendered against a nonresident who has neither been served with process nor appeared in the §uit is without validity. McDonald v. Mabee, 243 U. S., 90.”

No property having been seized or brought under the control of the court, and no personal service having been had upon the defendants, it would seem that the judgment dismissing the present action is correct, and that it ought to be upheld.

Affirmed.