Groce v. Groce, 234.
| Decision Date | 09 November 1938 |
| Docket Number | No. 234.,234. |
| Citation | 199 S.E. 388,214 N.C. 398 |
| Parties | GROCE. v. GROCE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Yadkin County; J. W. Pless, Jr., Judge.
Action by Walter J. Groce and another against E. C. Groce to restrain the sale of land and have a certain judgment in an action by E. C. Groce against Walter Groce and another vacated. The plaintiffs were allowed to treat their complaint as an affidavit and motion in the original cause. The motion to vacate the judgment was denied, and the movants appeal.
Error.
On April 6, 1937, E. C. Groce instituted an action against the movants herein in the Superior Court of Yadkin County by (1) issuing summons, (2) filing "complaint and affidavit", (3) obtaining warrant of attachment, and (4) notice of service by publication. On the same day, the sheriff made return on the summons as follows:
The complaint, used as an affidavit, contains the averment that "the defendants and each of them are residents of the County of Henry and State of Indiana."
The defendants filed no answer and made no appearance.
At the December Term, 1937, Yadkin Superior Court issues were submitted to a jury and answered in favor of the plaintiff, and judgment was entered thereon directing sale of land, etc.
Thereafter, in February 1938, this action was begun to restrain the sale of the land and to have the judgment vacated. By consent, the matter came on for hearing before Pless, J., upon the return date of the restraining order, at which time the plaintiffs were allowed to treat their complaint as an affidavit and motion in the original cause.
The motion to vacate the judgment in the original action was denied, and from this ruling the movants appeal, assigning errors.
Parks G. Hampton, of Elkin, and Don A. Walser, of Lexington, for appellants.
F. D. B. Harding, of Yadkinville, and William M. Allen, of Elkin, for appellees.
The record contains no averment, by affidavit or otherwise, that the defendants "cannot, after due diligence, be found in the state." Denton v. Vassiliades, 212 N. C. 513, 193 S.E. 737. This is an essential requirement to obtain service of summons by publication, C.S. § 484, and it must be made to appear "to the satisfaction of the court, " Bethell v. Lee, 200 N.C. 755, 158 S.E. 493, 494; Peters Grocery Co. v. Collins Bag Co, 142 N.C. 174, 55 S.E. 90; Wheeler v. Cobb, 75 N.C. 21. It will not suffice simply to say the defendants are nonresidents of the State. Davis v. Davis, 179 N.C. 185, 102 S.E. 270. Non constat that they may not be frequent visitors to ...
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