Coble v. Brown

• Citation: 159 S.E.2d 259,1 N.C.App. 1
• Decision Date: 21 February 1968
• Docket Number: No. 67SC16,67SC16
• Parties: Phillip Lee COBLE and Gladys Marie Coble, Plaintiffs, v. Lloyd Dewitt BROWN, Defendant.
• Court: Court of Appeal of North Carolina (US)

Page 259

159 S.E.2d 259

1 N.C.App. 1

Phillip Lee COBLE and Gladys Marie Coble, Plaintiffs, v. Lloyd Dewitt BROWN, Defendant.

No. 67SC16.

Court of Appeals of North Carolina.

Feb. 21, 1968.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendant appellant.

Douglas, Ravenel, Hardy & Crihfield, Greensboro, for plaintiffs appellees.

MORRIS, Judge.

Defendant assigns as error the Court's consideration of hearsay evidence contained in the Coble and Strader affidavits; making certain findings of fact based on this incompetent evidence; and concluding as a matter of law that defendant was duly served with process under G.S. § 1--105 and G.S. § 1--105.1 and defendant had wholly complied with the provisions of faid statutes. If there is competent evidence to support the Court's findings of fact, we are, of course, bound by the findings. Bigham v. Foor, 201 N.C. 14, 158 S.E. 548 (1931).

G.S. § 1--105 sets out the procedures to be followed in effecting service on nonresident drivers of motor vehicles and upon the personal representatives of deceased nonresident drivers of motor vehicles. By General Statutes § 1--105.1, the provisions of § 1--105 are made applicable 'to a resident of the State at the time of the accident or collision who establishes residence outside the State subsequent to the accident or collision and to a resident of the State at the time of the accident or collision who departs from the State subsequent to the accident or collision and remains absent therefrom for sixty (60) days or more continuously whether such absence is intended to be temporary or permanent.'

No question is raised as to whether defendant was a resident of the State at the time of the collision complained of.

To sustain service of process upon defendant under these statutes, the plaintiffs must show one of two circumstances; either: (1) that defendant had established a residence outside the State subsequent to the accident or collision, or (2) that he had left the State subsequent to the collision complained of and remained absent from the State for sixty days or more continuously.

Service of process, in order to acquire jurisdiction of the court over the person and property of citizens of the State, has always been, and properly so, carefully regulated. Careful regulation becomes even more necessary in situations where the parties must resort to constructive or substituted service. At the outset, it must be noted that we are here dealing with a proceeding In personam and not a proceeding In rem. Substituted or constructive service of process is a radical departure from the rule of the common law, and therefore statutes authorizing it must be strictly construed both as to the proper grant of authority for such service and in determining whether effective service under the statute has been made. Harrison v. Hanvey, 265 N.C. 243, 143 S.E.2d 593 (1965).

The object of all process is to give the person to be affected by the judgment notice that an action has been brought against him and an opportunity to defend. The possibility of defendant's receiving notice must be even more zealously guarded where the action is In personam.

G.S. § 1--98.2, providing for service by publication in certain actions, is designed to provide for a constructive service of process on nonresidents in certain instances in In rem or Quasi in rem actions, and in actions In personam where the defendant, a resident of the State, has departed the State or conceals himself with intent to defraud his creditors or avoid service of process. This statute specifically provides that where the person to be served cannot after due diligence be found in the State and that fact appears by affidavit to the satisfaction of the court, the court may grant an order that the service be made by publication.

The Supreme Court has held that an averment in the words of the statute (G.S. § 1--98.2) of the ultimate fact 'that, after due diligence, personal service cannot be had within the state,' was a sufficient averment of due diligence and sufficient compliance with statutory requirements without stating any of the probative, or evidentiary facts. Brown v. Doby, 242 N.C. 462, 87 S.E.2d 921 (1955).

The North Carolina Supreme Court, in Harrison v. Hanvey, supra, recognized that, although the weight of authority is to the contrary, the rule of Brown v. Doby, supra, is the law applicable in this State. In the Harrison case, however, the section of G.S. § 1--98.2 before the Court was Section (6) providing for service by publication 'where the defendant, a resident of this State, has departed therefrom or keeps himself concealed therein with intent to defraud his creditors or to avoid the service of summons'. The action was an In personam action brought to recover for personal injuries resulting from an automobile collision allegedly caused by defendant's negligence. Defendant entered a special appearance and moved to quash the purported service and for dismissal of the action for want of jurisdiction, contending, among other things, that defendant was not a member of the class defined by G.S. § 1--98.2(6). The Court said, 'Assuming that the same rule (referring to Brown v. Doby, supra) would apply to an averment of absconding or concealment, the court must hear the evidence, find the facts, and determine the validity of the service, when a defendant, upon a motion to vacate an order for publication and to quash the service based upon it, questions the sufficiency of the affidavit or evidence upon which plaintiff proceeds or offers evidence contradicting it'.

The case before us arises under G.S. § 1--105.1, and a mere averment of due diligence sufficient to support service by publication in an In rem action under G.S. § 1--98.2 is not sufficient here.

Here defendant contends that he is not within the class of persons covered by G.S. § 1--105.1 for that he was a...