Jones v. Jones, 21

Citation243 N.C. 557,91 S.E.2d 562
Decision Date29 February 1956
Docket NumberNo. 21,21
PartiesWilliam JONES, Herman Williams, Carrie Mae Vines, v. Carrie JONES, Ida Mae Jones White, Gladys Jones Williams, Rufus Jones, Wardell Jones, Rosa Lee Jones, Eleanor Jones Reddick, Ethel Jones, DeSota Jones, Stanley Thad Jones, Ulysses Jones, S. T. Wallace and McKinley Wallace.
CourtUnited States State Supreme Court of North Carolina

R. L. Coburn, Williamston, for petitioners.

Richard Powell, Greenville, Taylor & Mitchell, Raleigh, for respondents.

DENNY, Justice.

All the exceptions and assignments of error brought forward in the case on appeal are directed to the findings of fact and conclusions of law with respect to betterments and the order directing the cancelation of the deed of trust executed by William Jones and wife, Mary Jones, to B. A. Critcher, trustee for Eli Nicholson, dated 14th April, 1928, and recorded in Book C-3, page 510, of the Public Registry of Martin County, to secure an original indebtedness of $25.00.

These exceptions and assignments of error are without merit.

The appellant, however, filed a motion in this Court in arrest of judgment on the ground that the purported service by publication on certain of the respondents was not made in accordance with the requirements of Chapter 919, Session Laws of 1953. codified as G.S. §§ 1-98 through 1-104.

It is provided in G.S. § 1-98.4(a), among other things, that 'To secure an order for service of process by publication or service of process outside the State, the applicant must file in the office of the clerk of the court where the action is brought a statement in his verified pleading or separate affidavit, sworn to by the applicant, his agent or attorney, stating:

'(1) That he is a party, or the agent or attorney of a party, to the action or special proceeding; and

'(2) The facts with sufficient particularity to show: That the action or special proceeding is one of those specified in G.S. 1-98.2, that a cause of action exists against the person to be served or that he is a proper party, and that the action or special proceeding is of such a kind that the court will have jurisdiction upon service of process by publication or service of process outside the State; and

'(3) That, after due diligence, personal service cannot be had within the State; and

'(b) Where such service is to be had upon a natural person, the verified pleading or affidavit must state:

'(1) The name and residence of such person, or if they are unknown, that diligent search and inquiry have been made to discover such name and residence, and that they are set forth as particularly as is known to the applicant;

'(2) That such person is a minor or an incompetent, if such fact is known to the applicant.'

Neither the requirements of (b) (1) nor (b) (2) were complied with either in the pleadings or the affidavit for service of process by publication. Moreover, it is provided in G.S. § 1-99.2(c) that, 'The clerk shall mail a copy of the notice of service of process by publication to each party whose name and residence or place of business appear in the verified pleading or affidavit pursuant to the provisions of G.S. 1-98.4. Such copies shall be sent via ordinary mail, addressed to each party at the address of such party's residence or place of business as set forth in the verified complaint or affidavit, and shall be posted in the mails not later than five (5) days after the issuance of the order for service of process by publication. By certificate at the bottom of the order for service of process by publication or by separate certificate filed with the order, the clerk shall certify that a copy of the notice of service of process by publication has been duly mailed to each party whose name and residence or place of business appear in the verified pleading or affidavit, giving the date of posting thereof in the mails, and the clerk shall make an appropriate record thereof in accordance with the provisions of G.S. 2-42. Failure on the part of any party to receive a copy of the notice mailed in accordance with the provisions hereof shall not affect the validity of the service of process upon such party by publication, and no such copy of the notice need be mailed to any party as to whom the verified pleading or affidavit states that such party's residence or place of business is unknown and that diligent search and inquiry have been made to discover same.'

While the provisions of G.S. § 1-99.2(c) may have been complied with, the record is silent with respect thereto. In any event, the residences of the respondents purported to have been served with process by publication were not given in the pleadings or the affidavit as required by G.S. § 1-98.4(b) (1). Furthermore, it is pointed out in the motion in arrest of judgment that the notice of publication gave the respondents only ten days from the 10th day of October, 1953 to appear in the office of the Clerk of the Superior Court of Martin County and answer or demur to the petition filed in the proceeding, or the petitioners would apply for the relief demanded in the petition. Whereas, G.S. § 1-100, as amended by Chapter 919, Session Laws of 1953, expressly provides that after service by publication is completed, the parties (respondents here), 'shall then have such time thereafter to make defense as is provided in G.S. 1-125', that is, not less than ten nor more than twenty days to demur or answer in a special proceeding. But the notice of publication fixed the time from which the ten-day period would begin to run, only four days from the date of the last publication of the notice, which was on the 6th day of October, 1953. Whereas, the statute G.S. § 1-100 also provides that, 'In the cases in which service by publication...

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6 cases
  • Harrison v. Hanvey
    • United States
    • United States State Supreme Court of North Carolina
    • August 27, 1965
    ...construed, both as grants of authority and in determining whether service has been made in conformity with the statute. Jones v. Jones, 243 N.C. 557, 91 S.E.2d 562; Nash County v. Allen, 241 N.C. 543, 85 S.E.2d 921; Board of Comrs. of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E.2d This action ......
  • Sink v. Easter, 93
    • United States
    • United States State Supreme Court of North Carolina
    • January 25, 1974
    ...has been made in conformity with the statute.' Harrison v. Hanvey, 265 N.C. 243, 143 S.E.2d 593 (1965). Accord, e.g., Jones v. Jones, 243 N.C. 557, 91 S.E.2d 562 (1956); Nash County v. Allen, 241 N.C. 543, 85 S.E.2d 921 (1955); Comrs. of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E.2d 144 This ......
  • North State Finance Co. v. Leonard, 537
    • United States
    • United States State Supreme Court of North Carolina
    • December 16, 1964
    ...be disregarded and treated as a nullity everywhere.' City of Monroe v. Niven, 221 N.C. 362, 364, 20 S.E.2d 311, 312; Jones v. Jones, 243 N.C. 557, 563, 91 S.E.2d 562, and cases cited. 'Notice and an opportunity to be heard are prerequisites of jurisdiction (citations), and jurisdiction is a......
  • Richmond Cedar Works v. Farmers Mfg. Co., 781SC562
    • United States
    • Court of Appeal of North Carolina (US)
    • May 15, 1979
    ...statute. Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1973); Harrison v. Hanvey, 265 N.C. 243, 143 S.E.2d 593 (1965); Jones v. Jones, 243 N.C. 557, 91 S.E.2d 562 (1956). "[W]here the notice is required to contain a short form of description of the property, it is sufficient if it clearly c......
  • Request a trial to view additional results

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