Board of Com'rs of Roxboro v. Bumpass

• Decision Date: 02 February 1951
• Docket Number: No. 748,748
• Citation: 233 N.C. 190,63 S.E.2d 144
• Parties: BOARD OF COM'RS OF ROXBORO, v. BUMPASS et al.
• Court: North Carolina Supreme Court

Page 144

63 S.E.2d 144

233 N.C. 190

BOARD OF COM'RS OF ROXBORO, v. BUMPASS et al.

No. 748

Supreme Court of North Carolina.

Feb. 2, 1951

A. A. McDonald, Victor S. Bryant, and Robert I. Lipton, all of Durham, for appellant, Elsie Bumpass Doggett.

Robert E. Long, Roxboro, for the Board of Commissioners of Roxboro.

Davis & Davis, Roxboro, for Roxboro Building & Loan Association.

Melvin H. Burke, Roxboro, for Dee A. Clay.

BARNHILL, Justice.

The feme movant is the owner of the property described in the complaint, subject to the life estate of Maggie Bumpass. She is therefore a necessary party to this Action. City of Wilmington v. Merrick, 231 N.C. 397, 56 S.E.2d 643; Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717.

The plaintiff sought to bring her in and subject her to the jurisdiction of the court by service of summons by publication. Whether the proceeding in this respect was sufficient for that purpose is the primary question.

The service of process by publication is in derogation of the common law and the statute making provision therefor must be strictly construed. The court must see that every prerequisite prescribed exists in the particular case before it grants the order of publication. Spiers v. Halstead, 71 N.C. 209; Windley v. Bradway, 77 N.C. 333; Wheeler v. Cobb, 75 N.C. 21; Faulk v. Smith, 84 N.C. 501; Bacon v. Johnson, 110 N.C. 114, 14 S.E. 508; Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E.2d 901.

The statute prescribes, with particularity and caution, the cases and causes in which, and the conditions upon which, such service will be authorized. G.S. §§ 1-98 and 105-391. It expressly designates the facts which must be made to appear to the court by affidavit as the basis for an order of service by publication. The affidavit required to support an order for service of summons by publication is jurisdictional. The omission therefrom of any of the essential averments on which an order for substitute service is predicated is fatal. Groce v. Groce, 214 N.C. 398, 199 S.E. 388; Rodriguez v. Rodriguez, supra; Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124.

'Everything necessary to dispense with personal service of the summons must appear by affidavit.' Davis v. Davis, 179 N.C. 185, 102 S.E. 270, 272.

The affidavit must make it appear that a cause of action exists in favor of the plaintiff against the defendant upon whom such service is sought, G.S. § 1-98, and the cause of action must be stated with such clearness and comprehension as may enable the court to determine its sufficiency. Spiers v. Halstead, supra; Bacon v. Johnson, supra; Martin v. Martin, 205 N.C. 157, 170 S.E. 651. While the statement of the cause of action as set out in the affidavit may be abbreviated, it must be sufficient to disclose the nature of the action.

Here the affidavit contains no reference to a cause of action. It merely makes it appear that Elsie Bumpass cannot, after a diligent search, be found in this State. It is insufficient to support the order of publication.

But the plaintiff stressfully contends that any defect in the affidavit is cured by the complaint which was on file when the affidavit was presented. It relies on the decisions in Davis v. Davis, supra; County Sav. Bank v. Tolbert, 192 N.C. 126, 133 S.E. 558; and Martin v. Martin, supra. But these decisions can afford plaintiff little comfort, for they are clearly distinguishable.

In the Davis case a verified complaint and the affidavit were filed contemporaneously. Both were presented to the clerk with the proposed order for service by publication.

The court in the Tolbert case concluded that the affidavit was sufficient. It commented that, in that case, the jurisdiction of the court, as to the subject of the action, need not be shown by affidavit, and that, in any event, jurisdiction of the subject matter appears from the facts alleged in the complaint. The complaint was not used to supplement the affidavit.

In the Martin case the plaintiff requested the court to consider the complaint as an affidavit upon which an order for service by publication should be issued. The court in its opinion stated the rule followed in the Davis case as follows: '* * * if a verified complaint containing the necessary allegations be filed simultaneously with the affidavit, the complaint may be treated as an amendment or complement which cures the defect.' [ 205 N.C. 157, 170 S.E. 652.] This rule applies when it appears that the clerk considered the complaint as the basis, in whole or in part, of his order.

But in this case the complaint and affidavit were not filed simultaneously. At the time the affidavit was presented, the complaint had been on file more...