Denton v. . Vassiliades

193 S.E. 737, 212 N.C. 513, 1937 N.C. LEXIS 351

• Court: Supreme Court of North Carolina
• Decided: November 24, 1937
• Status: Published

Opinion

Stacy, C. J.

Without debating the question whether lis pendens may be used instead of attachment in service of process where the defendants are nonresidents of the State, suffice it to say the affidavit filed by plaintiffs’ attorney in the instant case is insufficient to procure service of summons by publication. Martin v. Martin, 205 N. C., 157, 170 S. E., 651. It is not averred in the affidavit, as required by O. S., 484, that the defendants “cannot, after due diligence, be found in the State.” This is an essential requirement, and it must be made to appear “to the satisfaction of the court.” Bethell v. Lee, 200 N. C., 755, 158 S. E., 493; Sawyer v. Drainage District, 179 N. C., 182, 102 S. E., 273; Lattrell v. Martin, 112 N. C., 593, 17 S. E., 573; Bacon v. Johnson, 110 N. C., 114, 14 S. E., 508.

To say that the defendants “cannot, after due diligence, be found in Wake County” (and it may be doubted whether the affidavit even avers this much) is far from saying that they “cannot, after due diligence, be found in the State.” It is not enough to aver that the defendants are nonresidents. Davis v. Davis, 179 N. C., 185, 102 S. E., 270. Non constat that they may not be frequent visitors to the State and amenable to process while here. Hill v. Lindsay, 210 N. C., 694, 188 S. E., 406.

Speaking to the requirement of the statute in Grocery Co. v. Bag Co., 142 N. C., 174, 55 S. E., 90, Wallcer, J., delivering the opinion of the Court, said: “By the evidence to satisfy the court was meant not the sheriff’s return on the summons, for if it had been the statute would have been so worded; and let us ask here, How could the fact that the defendant could not be found in the State — for that is the requisite condition of publication — be determined only by the return of the sheriff that he cannot be found in his county, when there are now in the State ninety-seven counties in all ? It was intended that it should appear only in the way pointed out in the statute — that is, by affidavit. The affi davit is made tbe initial step in tbe case, and tbe order of publication based upon it is tbe leading process.”

“Tbe mere issuing of a summons to tbe sheriff of tbe county of Pas-quotank and bis endorsement upon it tbe same day after it came to band, that Tbe defendant is not found in my county/ is no compliance whatever with tbe law.” Bynum, J., in Wheeler v. Cobb, 75 N. C., 21.

In Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315, it was held that service of summons by publication, on a defective affidavit, was ineffectual to bring tbe defendant into court. Indeed, it is elementary that unless one named as a defendant has been brought into court in some way sanctioned by law, or makes a voluntary appearance in person or by attorney, a judgment rendered against him is void for want of jurisdiction. Downing v. White, 211 N. C., 40, 188 S. E., 815; Dunn v. Wilson, 210 N. C., 493, 187 S. E., 802; Spence v. Granger, 207 N. C., 19, 175 S. E., 824; Harrell v. Welstead, 206 N. C., 817, 175 S. E., 283; Graves v. Reidsville Dodge, 182 N. C., 330, 109 S. E., 29.

Substantial compliance with tbe requirements of tbe statute will, of course, suffice. Martin v. Martin, supra; Bethell v. Lee, supra; Best v. Mortgage Co., 128 N. C., 351, 38 S. E., 923; Page v. McDonald, 159 N. C., 38, 74 S. E., 642. But tbe inadequacy of the present affidavit is manifest from tbe decisions above cited.»

Tbe defendants have been well advised in their procedure: Special appearance and motion to vacate attempted service of process, or to dismiss for want of jurisdiction. Buncombe County v. Penland, 206 N. C., 299, 173 S. E., 609; Smith v. Haughion, ibid., 587, 174 S. .E., 506; McCollum v. Stack, 188 N. C., 462, 124 S. E., 864; Motor Co. v. Reaves, 184 N. C., 260, 114 S. E., 175; Jenette v. Hovey, 182 N. C., 30, 108 S. E., 301; Brown v. Taylor, 174 N. C., 423, 93 S. E., 982; School v. Peirce, 163 N. C., 424, 79 S. E., 687; Grant v. Grant, 159 N. C., 528, 75 S. E., 734; Warlick v. Reynolds, 151 N. C., 606, 66 S. E., 657; Vick v. Flournoy, 147 N. C., 209, 60 S. E., 978; Scott v. Life Assn., 137 N. C., 515, 50 S. E., 221; Cooper v. Wyman, 122 N. C., 784, 29 S. E., 947, 65 A. S. R., 731; Clark v. Mfg. Co., 110 N. C., 111, 14 S. E., 518; Wheeler v. Cobb, supra; McIntosh N. C. P. & P., sec. 328. Tbe appeal, it will be noted, is from an order overruling a motion to dismiss, not upon tbe ground of irregularity or defective service of process, but for an alleged failure of any valid service of process at all, resulting in a want of jurisdiction over tbe defendants. R. R. v. Cobb, 190 N. C., 375, 129 S. E., 828; Lunceford v. Association, ibid., 314, 129 S. E., 805; Reich v. Mortgage Corp., 204 N. C., 790, 168 S. E., 814; Accident Co. v. Davis, 213 U. S., 245.

Tbe motion to dismiss should have been allowed.

Error.