LANE TRUCKING COMPANY v. Haponski , 260 N.C. 514 ( 1963 )

133 S.E.2d 192 (1963) 260 N.C. 514

LANE TRUCKING COMPANY
v.
Edward L. HAPONSKI.

No. 449.

Supreme Court of North Carolina.

November 20, 1963.

Allen Langston, Raleigh, for plaintiff appellee.

Bryant, Lipton, Bryant & Battle, Durham, for defendant appellant.

BOBBITT, Justice.

Plaintiff alleged the "trucks, rolling stock and other equipment" were in the State of Florida when defendant took possession and control thereof. There is no allegation or contention that the action involves property located in North Carolina and subject to the jurisdiction of our courts.

Plaintiff's action is for prohibitory and mandatory injunctive relief. "Injunction is distinctly an equitable remedy, and the wellestablished principle underlying equity jurisdiction that it is exercised in personam, and not in rem, is fully applicable." 28 Am. Jur., Injunctions § 4; 19 Am.Jur., Equity § 452; 43 C.J.S. Injunctions § 162; 30 C.J.S. Equity § 102.

Plaintiff contends the service by the Sheriff of Broward County, Florida, in said county, was authorized by G.S. § 1-104 and by G.S. § 55-33(c) and conferred upon the Superior Court of Wake County, North Carolina, jurisdiction over the person of defendant. The court below so held.

The provisions of G.S. § 1-104 are quoted and discussed by Denny, C. J., in Trinity Methodist Church v. Miller, 260 N.C. 331, 132 S.E.2d 688. The purported service now under consideration was not made in accordance with the requirements thereof. No affidavit other than the verified complaint was filed by plaintiff. The verified complaint (treated as an affidavit) does not meet the requirements of G.S. § 1-98.4. An affidavit in compliance with G.S. § 1-98.4 is jurisdictional. Temple v. Temple, 246 N.C. 334, 98 S.E.2d 314, and cases cited. The cause of action alleged by plaintiff is not one of the "kinds of actions and special proceedings" listed in G.S. § 1-98.2 in which "service of process outside the State may be had." There was no order "for service of process outside the State pursuant to G.S. 1-104." See G.S. § 1-99.

Apart from the foregoing, service in accordance with G.S. § 1-104 would not confer upon the Superior Court of Wake County jurisdiction of the person of defendant and enable it to render a valid in personam judgment. Trinity Methodist Church v. Miller, supra, and cases cited. As stated by Moore, J., in Burton v. Dixon, 259 N.C. 473, 479, 131 S.E.2d 27, quoted with approval by Denny, C. J., in Trinity Methodist Church v. Miller, supra: "Jurisdiction of a party in an action in personam, as is the instant action, can only be acquired by personal service of process within the territorial jurisdiction of the court, or by acceptance of service, or by general appearance, active or constructive. Warlick v. H. P. Reynolds & Co., 151 N.C. 606, 66 S.E. 657. In an action in personam constructive service (by publication, or personal service outside the State) upon a nonresident is ineffectual for any purpose. Stevens v. Cecil, 214 N.C. 217, 199 S.E. 161; McIntosh: North Carolina Practice and Procedure (2d ed. 1956), s. 191, p. 479."

G.S. § 55-33(c), a provision of the "Business Corporation Act" (Session Laws of 1955, Chapter 1371), provides: "Every resident of this State who shall become a director of a domestic corporation and thereafter removes his residence from this State shall be subject to the jurisdiction of the courts of this State in all actions or proceedings brought therein by, or on behalf of, or against said corporation in which said director is a necessary or proper party, or in any action or proceeding by shareholders or creditors against said director for violation of his duty as a director." Questions as to the interpretation and validity of this statutory provision must be considered in relation to specific factual situations. This statutory provision refers to (1) actions in which a former resident of this State who was and is a director of a domestic corporation is a necessary or proper party in his capacity as such director and (2) actions by shareholders or creditors against a director for violation of his duty as such director. It has no application to the present case. Plaintiff alleged defendant was not a director when this action was commenced. The action is not for violation by defendant of his duty as director but for alleged wrongful conduct of defendant (in Florida) subsequent to his removal from the office of director. Moreover, G.S. § 55-33(d) provides the exclusive method of service of process when service of process is authorized by G.S. § 55-33(c). Here, no attempt was made to comply with G.S. § 55-33(d).

The court having acquired no jurisdiction of the person of defendant, the court erred in overruling defendant's motion to dismiss and in entering an order on the merits adverse to defendant. Accordingly, the said orders of the court below are reversed and the cause is remanded for entry of an order dismissing the action.

Reversed and remanded.