Carolina Plywood Distributors, Inc. v. McAndrews

• Decision Date: 12 April 1967
• Docket Number: No. 291,291
• Citation: 153 S.E.2d 770,270 N.C. 91
• Parties: CAROLINA PLYWOOD DISTRIBUTORS, INC. v. Dave McANDREWS and Wayne Edward Courville.
• Court: North Carolina Supreme Court

Page 770

153 S.E.2d 770

270 N.C. 91

CAROLINA PLYWOOD DISTRIBUTORS, INC. v. Dave McANDREWS and Wayne Edward Courville.

No. 291.

Supreme Court of North Carolina.

April 12, 1967.

Lucas, Rand, Rose, Morris & Meyer, Wilson, by Robert F. Jones, for plaintiff.

Gardner, Connor & Lee, Wilson, for defendants.

BRANCH, Justice.

The question presented for decision by this appeal is whether the court acquired jurisdiction of the persons of the defendants.

G.S. § 1--105 provides that when a nonresident uses the public highways of this State, his acceptance of this privilege and right is deemed equivalent to his appointing the Commissioner of Motor Vehicles as his lawful attorney, upon whom summons may be served in actions against the nonresident growing out of his use of such roads. The statute further provides in pertinent part:

'Service of such process shall be made in the following manner:

(1) By leaving a copy thereof, with a fee of one dollar ($1.00), in the hands of the Commissioner of Motor Vehicles, or in his office. Such service, upon compliance with the other provisions of this section shall be sufficient service upon the said nonresident.

(2) Notice of such service of process and copy thereof must be forthwith sent by registered mail by plaintiff or the Commissioner of Motor Vehicles to the defendant, and the entries on the defendant's return receipt shall be sufficient evidence of the date on which notice of service upon the Commissioner of Motor Vehicles and copy of process were delivered to the defendant, on which date service on said defendant shall be deemed completed. * * * If the registered letter is not delivered to the defendant because it is unclaimed, or because he has removed himself from his last known address and has left no forwarding address or is unknown at his last known address, service on the defendant shall be deemed completed on the date that the registered letter is returned to the plaintiff or Commissioner of Motor Vehicles.

(3) The defendant's return receipt, or the original envelope bearing a notation by the postal authorities that receipt was refused, and an affidavit by the plaintiff that notice of mailing the registered letter and refusal to accept was forthwith sent to the defendant by ordinary mail, together with the plaintiff's affidavit of compliance with the provisions of this section must be appended to the summons or other process and filed with said summons, complaint and other papers in the cause.'

The constitutionality of this statute was upheld in Ashley v. Brown, 198 N.C. 369, 151 S.E. 725; Bigham v. Foor, 201 N.C. 14, 158 S.E. 548; and Davis v. Martini, 233 N.C. 351, 64 S.E.2d 1. The provisions thereof are in derogation of the common law and must be strictly complied with. Propst v. Hughes Trucking Co., 223 N.C. 490, 27 S.E.2d 152. It has been recognized by this Court that when the procedural requirements are strictly complied with, the process and pleading are subject to amendment in accordance with general rules. Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559.

Other courts recognize the necessity for strict compliance with the provisions of comparable statutes. The court in the case of Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, considering a similar statute, stated: 'Actual notice, given in any manner other than that prescribed by statute, cannot 'supply constitutional validity to the statute or to service under it. " A similar statute providing for service on nonresident motorists was construed by the Delaware Court in the case of Webb Packing Co. v. Harmon, 9 W.W.Harr. 22, 39 Del. 22, 196 A. 158, and the Court held: 'Due process of law, as applied to notice of proceedings resulting in judgment, means notice directed by the statute itself, and not a voluntary or gratuitous notice resting in favor or discretion.'

G.S. § 1--105 provides a statutory and artificial method by which duly issued process may be served on nonresident motorists. It does not in any way change or amend the law governing the commencement of actions or the contents of a summons. It is elementary that all civil actions are commenced by the issuance of summons, except as provided by G.S. § 1--98 and G.S. § 1--104, and in cases of controversy without action or confession of judgment without action. G.S. § 1--88. The issuance of a valid summons as provided in G.S. § 1--89 was necessary for there to be compliance with the provisions of G.S. § 1--105. Therefore, G.S. § 1--89 and G.S. § 1--105 must be construed together and the provisions of both strictly complied with.

G.S. § 1--89 provides, Inter alia:

'Contents, return, seal.--The summons must run in the name of the State, be signed by the clerk or deputy clerks of the superior court having jurisdiction to try the action, and be directed to the sheriff or other proper officers of the county or counties in which the defendants or any of them reside or may be found. It must be returnable before the clerk And must command the sheriff or other proper officer to summon the defendant, or defendants, to appear and answer the complaint of the plaintiff within thirty (30) days after its service upon defendant, or defendants; * * *.' (Emphasis ours)

The case of Russell v. Bea Staple Manufacturing Co., 266 N.C. 531, 146 S.E.2d 459, involved the validity of a judgment against Bea Staple Manufacturing Company, Inc., where the original summons commanded the sheriff 'to summon Clayton Eddinger, Kearns Warehouse, 518 Hamilton Street, High Point, North Carolina, local agent for Bea Staple Manufacturing Company, Incorporated, defendant(s) above named.' The Court held that such service did not constitute service of process upon Bea Staple Manufacturing Company, Incorporated, and stated through Parker, J., (now C.J.):

'For a court to...