Brown v. Doby , 242 N.C. 462 ( 1955 )

87 S.E.2d 921 (1955) 242 N.C. 462

R. L. BROWN, Jr., John B. Morris, Jr., J. Heath Morrow, Frank N. Patterson, Jr., Charles W. Pickler, and H. Wells Rogers, Trustees of the Albemarle City Administrative Unit, and Claude Grigg, Superintendent of Public Instruction of the Albemarle City Administrative Unit,
v.
Eliza Jane DOBY and J. Lillian Doby.

No. 597.

Supreme Court of North Carolina.

June 30, 1955.

Morton & Williams, Albemarle, for plaintiffs.

Charles E. Knox, Robert G. Sanders, and J. C. Sedberry, Charlotte, for defendants.

JOHNSON, Justice.

Decision here requires nothing more than a determination of the two basic questions raised by the defendants' motion to dismiss the proceeding for want of jurisdiction. In the motion, as lodged with the Clerk, the defendants asserts as alternate grounds for dismissal: (1) that since they are residents of this State, the summary procedure prescribed by G.S. § 115-85 for the condemnation of a school site does not sanction service of process by publication upon them; but (2), if so, in any event, the affidavit on which publication was made is fatally defective and does not confer jurisdiction for the reason that it fails to set forth facts sufficient to support the Clerk's finding of fact that the defendants cannot, after due diligence, be found within the State. Both grounds urged by the defendants are untenable. We discuss them seriatim.

1. The question whether the defendants are amenable to service of process by publication. The defendants contend that since G.S. § 115-85 expressly provides that where land sought to be condemned is "owned by a nonresident of the State, * * * notice to such nonresident owner shall be given * * * by publication * * *," it follows by implication that where the landowners, as here, are residents of the State, they are amenable only to personal service of process, and not to service by publication. We know of no rule of statutory construction which would sustain any such interpretation of G.S. § 115-85. But be this as it may, our general statute which fixes the scope of service of process by publication expressly provides as follows: "As used in G.S. 1-98 through G.S. 1-108, ``process' includes summons, order to show cause and any other order or notice issued in any action or special proceeding, legal service of which is a requisite to the relief sought." Section 1, Chapter 919, Session Laws of 1953, now codified as New G.S. § 1-98 (1953 Supplement). Therefore it is manifest that the statutes relating to service of process by publication, G.S. §§ 1-98 through 1-108, as amended by Chapter 919, Session Laws of 1953, apply to a resident defendant in a condemnation proceeding under G.S. § 115-85 no less than to such defendant in any other special proceeding. Both tribunals below were correct in holding that the defendants are amenable to service of process by publication in this proceeding. The authorities cited by the defendants are distinguishable

2. The question whether the plaintiffs' affidavit is sufficient to support the order of publication. Here, we limit discussion to the scope of the defendants' attack on the affidavit, which is that it does not allege sufficient facts to justify the Clerk's finding of fact that due diligence was exercised to locate the defendants within the State. Again, the defendants' position is untenable. Our examination of the affidavit discloses a four-page narrative of numerous unavailing efforts made by the plaintiffs and by process officers of Davidson County to locate the defendants for the purpose of effecting personal service. In addition to the foregoing recital of evidentiary facts bearing on the question of due diligence, the affidavit contains this allegation of ultimate fact as to such diligence: "That after due diligence, personal service cannot be had within the State of North Carolina on the defendants, or either of them."

Our statutory requirement as to proof of diligence is that the "pleading or separate affidavit" shall state "That, after due diligence, personal service cannot be had within the State." G.S. § 1-98.4(a), as rewritten by Chapter 919, Session Laws of 1953.

While there is authority to the contrary in other jurisdictions, Annotation, 21 A.L.R. 2d 929; 42 Am.Jur., Process, Section 93, we adhere to the rule that the allegation of the mere ultimate fact of due diligence, substantially in accord with the language of the statute, without statement of any of the probative or evidentiary facts, is sufficient to support an order of publication. Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124; Bethell v. Lee, 200 N.C. 755, 158 S.E. 493. See also McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138. Where the ultimate fact of due diligence is alleged substantially in the language of the statute and the clerk orders publication, ordinarily the presumption obtains that sufficient probative facts were presented to and found by the clerk to sustain the order. See Smith v. Smith, 226 N.C. 506, 39 S.E.2d 391; Hall v. Queen City Coach Co., 224 N.C. 781, 32 S.E.2d 325; In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421; Vestal v. Moseley Vending Machine Exchange, 219 N.C. 468, 14 S.E.2d 427.

In the case at hand the affidavit states the ultimate fact of due diligence substantially in the language of the statute. G.S. § 1-98.4(a). This suffices to meet minimum requirements with us. Hence it is not necessary to discuss the sufficiency of the probative facts alleged in the affidavit, though they appear to be adequate. Annotation: 21 A.L.R. 2d 929.

The adjudication below to the effect that the defendants have been duly served with process will be upheld on the ground that they have been served by publication.

In this view of the case we do not reach for decision the remaining assignments of error, including those relating to (1) the refusal of the court to allow the defendants' "objections" to the form and content of the Clerk's statement of case on appeal; (2) the finding and conclusion that the defendants were served personally with notice within the purview of G.S. § 115-85; and (3) the finding and conclusion that they submitted to the jurisdiction of the court "in the matter now pending" by instituting the independent action to enjoin the plaintiffs herein from proceeding with the original condemnation proceeding. The questions raised by all these assignments of error are moot in view of the ground upon which we rest decision. Therefore, further discussion is unnecessary. The order entered below will be upheld on the ground announced. It is so ordered.

Affirmed.