Jones v. Jones , 243 N.C. 557 ( 1956 )

91 S.E.2d 562 (1956) 243 N.C. 557

William JONES, Herman Williams, Carrie Mae Vines,
v.
Carrie JONES, Ida Mae Jones White, Gladys Jones Williams, Rufus Jones, Wardell Jones, Rosa Lee Jones, Eleanor Jones Reddick, Ethel Jones, DeSota Jones, Stanley Thad Jones, Ulysses Jones, S. T. Wallace and McKinley Wallace.

No. 21.

Supreme Court of North Carolina.

February 29, 1956.

R. L. Coburn, Williamston, for petitioners.

Richard Powell, Greenville, Taylor & Mitchell, Raleigh, for respondents.

DENNY, Justice.

All the exceptions and assignments of error brought forward in the case on appeal are directed to the findings of fact and conclusions of law with respect to betterments and the order directing the cancelation of the deed of trust executed by William Jones and wife, Mary Jones, to B. A. Critcher, trustee for Eli Nicholson, dated 14th April, 1928, and recorded in Book C-3, page 510, of the Public Registry of Martin County, to secure an original indebtedness of $25.00.

These exceptions and assignments of error are without merit.

The appellant, however, filed a motion in this Court in arrest of judgment on the ground that the purported service by publication on certain of the respondents was not made in accordance with the requirements of Chapter 919, Session Laws of 1953, codified as G.S. §§ 1-98 through 1-104.

It is provided in G.S. § 1-98.4(a), among other things, that "To secure an order for service of process by publication or service of process outside the State, the applicant must file in the office of the clerk of the court where the action is brought a statement in his verified pleading or separate affidavit, sworn to by the applicant, his agent or attorney, stating:

"(1) That he is a party, or the agent or attorney of a party, to the action or special proceeding; and

"(2) The facts with sufficient particularity to show: That the action or special proceeding is one of those specified in G.S. 1-98.2, that a cause of action exists against the person to be served or that he is a proper party, and that the action or special proceeding is of such a kind that the court will have jurisdiction upon service of process by publication or service of process outside the State; and

"(3) That, after due diligence, personal service cannot be had within the State; and

"(b) Where such service is to be had upon a natural person, the verified pleading or affidavit must state:

"(1) The name and residence of such person, or if they are unknown, that diligent search and inquiry have been made to discover such name and residence, and that they are set forth as particularly as is known to the applicant;

"(2) That such person is a minor or an incompetent, if such fact is known to the applicant."

Neither the requirements of (b) (1) nor (b) (2) were complied with either in the pleadings or the affidavit for service of process by publication. Moreover, it is provided in G.S. § 1-99.2(c) that, "The clerk shall mail a copy of the notice of service of process by publication to each party whose name and residence or place of business appear in the verified pleading or affidavit pursuant to the provisions of G.S. 1-98.4. Such copies shall be sent via ordinary mail, addressed to each party at the address of such party's residence or place of business as set forth in the verified complaint or affidavit, and shall be posted in the mails not later than five (5) days after the issuance of the order for service of process by publication. By certificate at the bottom of the order for service of process by publication or by separate certificate filed with the order, the clerk shall certify that a copy of the notice of service of process by publication has been duly mailed to each party whose name and residence or place of business appear in the verified pleading or affidavit, giving the date of posting thereof in the mails, and the clerk shall make an appropriate record thereof in accordance with the provisions of G.S. 2-42. Failure on the part of any party to receive a copy of the notice mailed in accordance with the provisions hereof shall not affect the validity of the service of process upon such party by publication, and no such copy of the notice need be mailed to any party as to whom the verified pleading or affidavit states that such party's residence or place of business is unknown and that diligent search and inquiry have been made to discover same."

While the provisions of G.S. § 1-99.2(c) may have been complied with, the record is silent with respect thereto. In any event, the residences of the respondents purported to have been served with process by publication were not given in the pleadings or the affidavit as required by G.S. § 1-98.4(b) (1). Furthermore, it is pointed out in the motion in arrest of judgment that the notice of publication gave the respondents only ten days from the 10th day of October, 1953 to appear in the office of the Clerk of the Superior Court of Martin County and answer or demur to the petition filed in the proceeding, or the petitioners would apply for the relief demanded in the petition. Whereas, G.S. § 1-100, as amended by Chapter 919, Session Laws of 1953, expressly provides that after service by publication is completed, the parties (respondents here), "shall then have such time thereafter to make defense as is provided in G.S. 1-125", that is, not less than ten nor more than twenty days to demur or answer in a special proceeding. But the notice of publication fixed the time from which the ten-day period would begin to run, only four days from the date of the last publication of the notice, which was on the 6th day of October, 1953. Whereas, the statute G.S. § 1-100 also provides that, "In the cases in which service by publication is allowed, the summons is deemed served at the expiration of seven (7) days from the date of the last publication * * *."

In the case of Board of Com'rs of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E. 2d 144, 146, Barnhill, J., now Chief Justice, said: "The service of process by publication is in derogation of the common law and the statute making provision therefor must be strictly construed. The court must see that every prerequisite prescribed exists in the particular case before it grants the order of publication", citing authorities.

A prerequisite prescribed by statute to support an order of service by publication is jurisdictional. The omission from the pleadings or affidavit of any of the required information or averments, on which the order for substitute service is predicated, is fatal. Groce v. Groce, 214 N.C. 398, 199 S.E. 388; Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E.2d 901; Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124; Board of Com'rs of Roxboro v. Bumpass, supra.

In Groce v. Groce, supra, Stacy, C. J., said [214 N.C. 398, 199 S.E. 389]: "It is the universal holding that unless one named as a defendant has been brought into court in some way sanctioned by law, or makes a voluntary appearance in person or by attorney, a judgment rendered against him is void for want of jurisdiction. Stevens v. Cecil, 214 N.C. 217, 199 S.E. 161; Downing v. White, 211 N.C. 40, 188 S.E. 815; Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283."

In our opinion, the purported service of process by publication in this proceeding is fatally defective, and we so hold. It follows, therefore, that the judgment entered below is null and void as to the respondents who have not been legally served, to-wit: Ida Mae Jones White, Ethel Jones, Wardell Jones, Gladys Jones Williams, Ulysses Jones, DeSota Jones, S. T. Wallace and McKinley Wallace.

It is true the trial judge who heard this matter below found that all interested and necessary parties were before the court, but the record clearly shows otherwise and the record must prevail in such instances. Williams v. Trammell, 230 N.C. 575, 55 S.E.2d 81; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26.

In view of the fact that the only matters in controversy in the hearing below involved the question of betterments and the cancelation of the deed of trust referred to hereinabove, we think the findings of fact and conclusions of law with respect thereto should be upheld. There is no competent evidence on the record to support the view that Carrie Jones has ever had any interest in the property involved herein, other than a dower interest in the 1/5 undivided interest of which her husband, Ferd Jones, died seized. Moreover, there is no competent evidence to support a claim for betterments on behalf of the personal representative of Ferd Jones, his widow, or his children. Hence, the judgment will be affirmed in all respects except as to the order of sale. The petitioners are entitled, as a matter of right, to partition. Moore v. Baker, 222 N.C. 736, 24 S.E.2d 749. However, they are not entitled, as a matter of right, to a sale for partition until all interested and necessary parties are served with process and given an opportunity to be heard if they so desire. Patillo v. Lytle, 158 N.C. 92, 73 S.E. 200. And where error appears upon the face of the record, this Court may correct it ex mero motu. Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; Gibson v. Central Mfrs' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320.

Therefore, so much of the judgment entered below as authorizes the sale of the premises at this time will be set aside. But in all other respects the judgment is affirmed as to the petitioners and respondents who have been duly and legally served with process.

This cause will be remanded to the end that the respondents named hereinabove who have not been served with process by publication or otherwise, may be served and given an opportunity to show cause, if any they have, why they should not be bound by the judgment entered below and the property sold for partition as provided by law. Hine v. Blumenthal, 239 N.C. 537, 80 S.E.2d 458.

Error and remanded.