Groce v. . Groce

199 S.E. 388, 214 N.C. 398, 1938 N.C. LEXIS 360

• Court: Supreme Court of North Carolina
• Decided: November 9, 1938
• Status: Published

Opinion

Stacy, 0. J.

Tbe record contains no averment, by affidavit or otherwise, that tbe defendants “cannot, after due diligence, be found in tbe State.” Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737. Tbis is an essential requirement to obtain service of summons by publication, C. S., 484, and it must be made to appear “to tbe satisfaction of tbe court.” Bethell v. Lee, 200 N. C., 755, 158 S. E., 493; Grocery Co. v. Bag Co., 142 N. C., 174, 55 S. E., 90; Wheeler v. Cobb, 75 N. C., 21. It will not suffice simply to say tbe defendants are nonresidents of tbe State. Davis v. Davis, 179 N. C., 185, 102 S. E., 270. Non constat that they may not be frequent visitors to tbe State and amenable to process while here. Hill v. Lindsay, 210 N. C., 694, 188 S. E., 406.

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 defendants into court. To like effect is tbe decision in Denton v. Vassiliades, supra.

It is tbe universal bolding 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. Stevens v. Cecil, ante, 217; Downing v. White, 211 N. C., 40, 188 S. E., 815; Harrell v. Welstead, 206 N. C., 817, 175 S. E., 283.

There was error in denying tbe motion of appellants. Denton v. Vassiliades, supra.

Error.