Stokes v. Stokes

132 S.E.2d 315, 260 N.C. 203, 1963 N.C. LEXIS 652

• Court: Supreme Court of North Carolina
• Decided: September 18, 1963
• Status: Published

Opinion

Per Cueiam.

Ia the absence of fraud, ttthe Superior Court of any county in North Oaroliona has jurisdiction of an action for divorce if either of the parties is domiciled in this State. The provisions of G.S. 50-3 that in divorce proceedings the summons shall be returnable to the court of the county in which either the plaintiff or defendant resides are not jurisdictional; they relate only to venue. Denson v. Denson, 255 N.C. 703, 122 S.E. 2d 507; Nelms v. Nelms, 250 N.C. 237, 108 S.E. 2d 529; Smith v. Smith, 226 N.C. 506, 39 S.E. 2d 391. However, if a plaintiff should fraudulently conceal his action from the defendant and the whereabouts of the defendant from the court, jurisdiction would be lacking and a divorce obtained upon service of summons by publication would be a nullity. The court’s judgment would be vacated upon a motion in the cause. McLean v. McLean, 233 N.C. 139, 63 S.E. 2d 138.

Judge Burgwyn, after a full hearing, found no merit in defendant’s allegations that plaintiff had procured the divorce by fraud. G.S. 1-99.2(c) did not require the clerk to mail defendant a copy of the notice of service of process by publication when plaintiff’s affidavit stated that her residence was unknown and diligent search and inquiry had been made to discover it. The defendant herself treated the divorce as valid when she married Willis in October 1959. This record discloses no reason why the court should invalidate.it in 1963.

The judgment of the court below is

Affirmed.

Mooee, J. took no part in the consideration or decision of this case.