Harrison v. Hanvey

• Citation: 143 S.E.2d 593,265 N.C. 243
• Decision Date: 27 August 1965
• Docket Number: No. 458,458
• Parties: Carol HARRISON v. Richard Dix HANVEY.
• Court: North Carolina Supreme Court

Page 593

143 S.E.2d 593

265 N.C. 243

Carol HARRISON v. Richard Dix HANVEY.

No. 458.

Supreme Court of North Carolina.

Aug. 27, 1965.

Battley & Frank, by W. R. Battley, Statesville, for plaintiff appellee.

Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for defendant appellant.

SHARP, Justice.

To sustain service upon defendant by publication, plaintiff must show: (1) that the case is one in which service by publication is authorized by statute; and (2) that the questioned service has been made in accordance with statutory requirements. Counsel for defendant denies that defendant is a member of the class defined by G.S. § 1-98.2(6), the statute under which plaintiff proceeds. He asserts that, even if defendant were a member of that class, a personal judgment against him based on constructive service would violate due process. He further contends that, in any event, plaintiff has not fulfilled the statutory requirements for service by publication.

Service of process by publication is in derogation of the common law. Statutes authorizing it, therefore, are strictly 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 144.

This action is neither in rem nor quasi in rem (see Bernhardt v. Brown, 118 N.C. 700, 705, 24 S.E. 527, 528, 715, 36 L.R.A. 402); it is an action in personam for a money judgment against a defendant who was a resident of the state of the time the cause of action arose. Plaintiff has not attempted to serve defendant under G.S. § 1-105.1. She has attempted service under G.S. § 1-98.2(6), which authorizes publication '[w]here the defendant, a resident or this State, has departed therefrom or keeps himself concealed therein with intent to defraud his creditors or to avoid the service of summons.' (Italics ours.) Plaintiff's counsel takes the position that the italicized prepositional phrase applies only to the second predicate, and that service by publication is authorized upon his affidavit that defendant, a resident of North Carolina, 'has departed the state, or keeps himself concealed in this state to avoid service of the summons'; that the cannot, after due and diligent search, be found in North Carolina; and that service of process cannot be had upon him within the state.

Before we can pass upon the sufficiency of plaintiff's affidavit to bring defendant within the class of persons defined by G.S. § 1-98.2(6), we must determine the meaning of the statute. Since no comma separates the two predicates in G.S. § 1-98.2(6), it is our view, and we hold, that the intent to defraud creditors or to avoid the service of summons must be shown both as to departure and as to concealment. This interpretation is, in effect, the wording of G.S. § 1-440.3(4), the statute which specifies the grounds for attachment. It was likewise thus spelled out in the Code of 1883, § 218(2) (C.C.P., § 83), which authorized service by publication '[w]here the defendant, being a resident of this state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of summons, or keeps himself concealed therein with like intent.' (Italics ours.) The italicized words were eliminated from the Code of 1883, § 218(2), by P.L. of 1895, ch. 334. Minus these words, § 484(2) of the Consolidated Statutes of 1919 was identical with the Code of 1883, § 218(2), and its identical language was carried forward in G.S. § 1-98(2). Sess.Laws 1953, ch. 919, rewrote the statute relating to service by publication, but G.S. § 1-98.2(6) is in the wording of G.S. § 1-98(2). See 31 N.C.L.Rev. 391.

In Trinity Methodist Church v. Miller, 260 N.C. 331, 132 S.E.2d 688, the plaintiff sought to obtain service of process upon the individual defendant by publication. The affidavit alleged that '[a]fter due and diligent search, said defendant, although a resident of North Carolina, cannot be found in this state and personal service cannot be made upon him in this State.' The complaint, however, alleged that defendant was not a resident of North Carolina. Although basing our decision on the proposition that G.S. § 1-98.2(6) does not authorize service of process by publication on a nonresident, the Court noted, per Denny, C. J., that '[t]here is no allegation in the affidavit or in plaintiff's complaint, alleging that the defendant left the State with the intent to defraud his creditors or to avoid service of process.' Id. at 334, 132 S.E.2d at 690. If a defendant is, in fact, a resident of North Carolina who has departed the state with intent to defraud his creditors or to avoid service of process or who keeps himself concealed in the state with like intent, he is amenable to service by publication if it is made in conformity with the statutory requirements.

'(T)he authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. * * * The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incidence of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.' Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283, 132 A.L.R. 1357, 1361;accord, Allen v. Superior Court, 41 Cal.2d 306, 259 P.2d 905; 42 Am.Jur., Process §§ 67, 70 (1942); Restatement, Conflict of Laws §§ 47, 75 (1934).

The great majority of cases which have considered the question have not applied to residents the doctrine of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, that a judgment in personam rendered in a state court against a nonresident upon constructive service cannot be enforced even in the state where it was rendered. They 'have sustained the validity of a personal judgment recovered against a resident or a domestic corporation upon substituted or constructive service of process where he or it could not be personally served within the state, and the constitutionality of statutes authorizing such service has pretty generally been sustained so far as residents are concerned.' 126 A.L.R. 1475. A number of cases, however, reach a contrary conclusion. The character of the service usually plays a determinative role in a decision whether the service will be sustained. For a full discussion and collection of cases see Annot., Substituted service, service by publication, or service out of the state, in action in personam against resident or domestic corporation, as contrary to due process of law, 126 A.L.R. 1474, supplemented in 132 A.L.R. 1361.

The meanings attached to the terms personal, constructive, and substituted service are so varied that individual statutes must be examined. In general, however, personal service means actual service of process upon defendant personally, wherever accomplished; constructive service, service by newspaper publication; substituted service, service upon some member of defendant's family at his usual place of abode or upon a statutory agent. Service by mail is self-explanatory. Comment, Personal Jurisdiction over Abusent Natural Persons, 44 Calif.L.Rev. 737. Personal service on a resident outside the state or substituted service at his place of abode is much more likely to be sustained than is constructive service, which, of all the methods, is the least likely to give notice. As Mr. Justice Jackson pointed out in Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 315, 70 S.Ct. 652, 658, 94 L.Ed. 865, 874:

'It is not an accident that the greater number of cases reaching this Court on the question of adequacy of notice have been concerned with actions founded on process constructively served through local newspapers. Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed.'

In Milliken v. Meyer, supra, the personal judgment of a Wyoming court was upheld against a resident who had been personally served in Colorado pursuant to the Wyoming statutes which provided:

'Personal service out of state. In all cases where service may be made by publication under the provisions of this chapter, personal service of a copy of the summons and the petition in said action may be made out of the state * * *.' Wyo.Comp.Stat.1920, § 5641.

'Service by publication may be had in either of the following cases: * * *

6. In actions where the defendant, being a resident of this state, has departed from the county of his residence with the intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself concealed with like intent.' Wyo.Comp.Stat.1920, § 5636.

In McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608, L.R.A.1917F, 458, after an action on a note was instituted against the defendant in Texas, he left to establish a home elsewhere, his family remaining there in the meanwhile. The defendant subsequently returned to Texas for a short time and then established his domicile in Missouri. The only service upon him was by publication in a newspaper once a week for four weeks after his final departure. The court held the judgment based upon such service void, but, speaking through Mr. Justice Holmes,...