Wayne County ex rel. Williams v. Whitley

Decision Date28 December 1984
Docket NumberNo. 848DC454,848DC454
Citation323 S.E.2d 458,72 N.C.App. 155
PartiesCOUNTY OF WAYNE ex rel. Ruby Mae WILLIAMS v. Michael Anthony WHITLEY.
CourtNorth Carolina Court of Appeals

Baddour, Lancaster, Parker & Hine by E.B. Borden Parker, Goldsboro, for plaintiff-appellee.

Duke & Brown by John E. Duke, Goldsboro, for defendant-appellant.

BRASWELL, Judge.

This case presents the question: Can in personam jurisdiction be obtained over a defendant through service of process by publication within ninety days of the issuance of the original summons, but before any issuance of an alias or pluries summons? We hold that it can. However, because the service of process by publication under G.S. 1A-1, Rule 4(j1) was insufficient in this case, jurisdiction over the defendant was not obtained and the judgment entered against him is void.

This civil action was commenced by the filing of a verified complaint and the issuance of a summons on 12 January 1979. The plaintiff sued the defendant to have him declared the father of a minor child, Pamela Williams, and to have him ordered to pay reasonable support for the child.

The summons was issued to the defendant at his address in Fort Leavenworth, Kansas, but was returned unserved. Thereafter, on 21, 28 March 1979 and 4 April 1979, without first having the original summons endorsed or an alias or pluries summons issued, the plaintiff ran a "Notice of Service of Process by Publication" in the Goldsboro News-Argus. The plaintiff filed an affidavit dated 18 May 1979 stating that the defendant had been served by publication according to G.S. 1-597. One year and one month later, on 18 June 1980, District Court Judge Kenneth Ellis entered an order against the defendant finding that the defendant had been properly served by publication, adjudging the defendant the father of Pamela Williams, and ordering him to pay $150 a month for her support.

The defendant on 19 October 1983 specially appeared and filed a G.S. 1A-1, Rule 60(b)(4) motion seeking to have the order declared void and vacated for lack of in personam jurisdiction due to insufficient service of process. On 24 February 1984 District Court Judge Patrick Exum, on the basis of McCoy v. McCoy, 29 N.C.App. 109, 223 S.E.2d 513 (1976), cited in his order, denied the defendant's motion to vacate. From that order, the defendant has appealed.

A G.S. 1A-1, Rule 60(b)(4) motion seeks relief from a final judgment or order which is void. This motion is addressed to the sound discretion of the court. The scope of our review on appeal is limited to determining whether the court abused its discretion when it denied the defendant's motion. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975). But see Carter v. Carr, 68 N.C.App. 23, 314 S.E.2d 281, disc. rev. allowed, 311 N.C. 751, 321 S.E.2d 127 (1984). If a judgment or an order is rendered without an essential element such as jurisdiction or proper service of process, it is void. Wynne v. Conrad, 220 N.C. 355, 17 S.E.2d 514 (1941).

To determine whether in personam jurisdiction was obtained over the defendant through the method of service of process used in this case, we must analyze our facts in relation to the rules having to do with the issuance of a summons and service by publication that have already been established. Under G.S. 1A-1, Rule 4(a), a summons must be issued within five days of the filing of the complaint. Where a complaint has been filed and a proper summons does not issue within the five days allowed under the rule, the action is deemed never to have commenced. Everhart v. Sowers, 63 N.C.App. 747, 306 S.E.2d 472 (1983).

The summons must be served within thirty days after the date of the issuance of the summons. G.S. 1A-1, Rule 4(c). However, the failure to make service within the time allowed does not invalidate the summons. The action may continue to exist as to the unserved defendant by two methods. First, within ninety days after the issuance of the summons or the date of the last prior endorsement, the plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Secondly, the plaintiff may sue out an alias or pluries summons at any time within ninety days after the date of issue of the last preceding summons in the chain of summonses or within ninety days of the last prior endorsement. G.S. 1A-1, Rule 4(d)(1) and (2). Thus, a summons that is not served within the thirty-day period becomes dormant and cannot effect service over the defendant, but may be revived by either of these two methods. If the ninety-day period expires without the summons being served within the first thirty days or revived within the remaining sixty days, the action is discontinued. If a new summons is issued, it begins a new action. G.S. 1A-1, Rule 4(e).

In McCoy v. McCoy, supra, this Court held that the issuance of a summons is not essential to the validity of service of process by publication as to a defendant whose usual place of abode is unknown and cannot be ascertained with due diligence. In that case the plaintiff-wife had filed her verified complaint on 13 June 1975 and began service of process by publication on 16 June 1975. Id. 29 N.C.App. at 109-10, 223 S.E.2d at 514.

However, this Court in Byrd v. Watts Hospital, 29 N.C.App. 564, 225 S.E.2d 329 (1976) and again in Brown v. Overby, 61 N.C.App. 329, 300 S.E.2d 565 (1983), held that service by publication, begun more than ninety days after the last alias and pluries summons, did not revive an otherwise discontinued action. Judge Hedrick in Brown quoted the following explanatory text from Byrd:

"... here, the action had abated at the time plaintiff attempted service by publication. Before plaintiff here could obtain service by publication he first had to revive the action, and that revival could be accomplished only by the issuance of alias or pluries summons or endorsement of the last valid summons.

... We think Rule 4(e) mandates that something be done in the clerk's office to revive a discontinued action--obtain an alias or pluries summons or an endorsement to the original summons. (Emphasis in original)."

Id. at 331, 300 S.E.2d at 566-67, quoting Byrd, supra, 29 N.C.App. at 569, 225 S.E.2d at 331-32.

Our facts show that the plaintiff had a summons issued within five days of the filing of the complaint. Thus, the action did in fact commence. When this summons was not served within thirty days of its issuance, it became dormant or unservable, but nevertheless was not invalidated according to G.S. 1A-1, Rule 4(c) and was subject to being revived under the two methods under Rule 4(d). However, rather than have the original summons endorsed or sue out an alias or pluries summons, the plaintiff approximately sixty-eight days from the issuance of the summons began service of process by publication. Thus, like McCoy and contrary to Byrd and Brown, at the time the service by publication was begun, the action had not abated nor had it been discontinued.

Furthermore, although Rule 4 does not specifically answer the question presented in this case, it does clearly provide that a summons not served...

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28 cases
  • In re K.J.L., COA08-284-2.
    • United States
    • North Carolina Court of Appeals
    • December 16, 2008
    ...issue within the five days allowed under the rule, the action is deemed never to have commenced." County of Wayne ex rel. Williams v. Whitley, 72 N.C.App. 155, 157, 323 S.E.2d 458, 461 (1984) (citation omitted and emphasis added); see also Huggins v. Hallmark Enterprises, Inc., 84 N.C.App. ......
  • Hopeful v. Etchepare, LLC
    • United States
    • Wyoming Supreme Court
    • April 20, 2023
    ...to the contrary. McCoy v. McCoy, 223 S.E.2d 513, 515-16 (N.C. Ct. App. 1976) (emphasis added). This ruling was recognized in Wayne Cnty. ex rel. Williams v. Whitley, where court stated: [I]f the circumstances are such to justify service of process by publication (in other words, even with d......
  • Johnson v. Lucas, COA03-1358.
    • United States
    • North Carolina Court of Appeals
    • February 15, 2005
    ...of process. N.C. Gen.Stat. § 1A-1, Rule 4 (2003); N.C. Gen.Stat. § 1A-1, Rule 5 (2003); see also County of Wayne ex. rel. Williams v. Whitley, 72 N.C.App. 155, 158, 323 S.E.2d 458, 461 (1984) (an action may be continued against that defendant by either: (1) the plaintiff securing an endorse......
  • In re A.B.D.
    • United States
    • North Carolina Supreme Court
    • September 6, 2005
    ...and cannot effect service over the defendant, but may be revived by either of these two methods. County of Wayne ex rel. Williams v. Whitley, 72 N.C.App. 155, 157-58, 323 S.E.2d 458, 461 (1984). In addition to endorsements and alias/pluries summonses, a plaintiff/petitioner may also obtain ......
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1 books & journal articles
  • The Problem With Service by Publication
    • United States
    • South Carolina Bar South Carolina Lawyer No. 26-5, March 2015
    • Invalid date
    ...[12] Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 109, 536 S.E.2d 372, 375 (2000). [13] See, Wayne County ex rel. Williams v. Whitley, 323 S.E.2d 458 (1984); see also, Caldwell v. Wiquist, 402 S.C. 565, 575, 741 S.E.2d 583, 588 (Ct. App. 2013) (“to avoid resolving litigation by default, str......

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