McCoy v. McCoy , 29 N.C. App. 109 ( 1976 )

223 S.E.2d 513 (1976) 29 N.C. App. 109

Florine Jones McCOY
v.
Thomas McCOY, Jr.

No. 7510DC921.

Court of Appeals of North Carolina.

April 7, 1976.

Crisp, Bolch, Smith & Clifton by Joyce L. Davis, Raleigh, for plaintiff-appellant.

No counsel contra.

PARKER, Judge.

This case presents the question: Is issuance of a summons essential to validity of service of process by publication made pursuant to G.S. 1A-1, Rule 4(j)(9)c upon a party to a civil action whose "address, whereabouts, dwelling house or usual place of abode is unknown and cannot with due diligence be ascertained?" We hold that it is not.

Since 1 January 1970, the effective date of our Rules of Civil Procedure, a civil action is no longer commenced by issuance of summons but by filing a complaint with the court. G.S. 1A-1, Rule 3. Even under our former practice, when in general a civil action was commenced by issuance of summons (See G.S. 1-88, repealed effective 1 January 1970), no summons was required when service was by publication. Interpreting the statutes formerly in effect, our Supreme Court held that "a civil action shall be commenced by issuing a summons, except in cases where the defendant is not within reach of the process of the court and cannot be personally served, when it shall be commenced by the filing of the affidavit to be followed by publication." Grocery Company v. Collins Bag Company, 142 N.C. 174, 179, 55 S.E. 90, 92 (1906). In that case our Supreme Court expressly overruled a prior decision and held, p. 182, that "[t]he defendant's objection to the publication based on the fact that a summons had not issued cannot be sustained." Later cases were in accord; see, e. g. Mills v. Hansel, 168 N.C. 651, 85 S.E. 17 (1915); Mohn v. Cressy, 193 N.C. 568, 137 S.E. 718 (1927); Bethell v. Lee, 200 N.C. 755, 158 S.E. 493 (1931); Voehringer v. Pollock, 224 N.C. 409, 30 S.E.2d 374 (1944). In some of these decisions holding no summons was required where it clearly appeared to the court by affidavit that defendant could not be personally served, the opinion of our Supreme Court characterized the issuing of a summons in such cases and having the sheriff make the return that the defendant was not to be found as being a "useless formality." The statute formerly in effect, G.S. 1-98, permitted service by publication only when the person to be served by publication could not after "due diligence" be found in the State. By the decisions in the cases above cited, our Supreme Court held that "due diligence" did not require performance of a useless formality.

Adoption of our new Rules of Civil Procedure has made no change in our practice in this regard. Rule 4(j)(9)c, which sets forth the procedure for service of process by publication, reads in pertinent part as follows:

"c. Service by publication.—A party subject to service of process under this subsection (9) may be served by publication whenever the party's address, whereabouts, dwelling house or usual place of abode is unknown and cannot with due diligence be ascertained, or there has been a diligent but unsuccessful attempt to serve the party under either paragraph a or under paragraph b or under paragraphs a and b of this subsection (9)." (Emphasis added).

This subparagraph appears in Rule 4(j), which deals with the manner of service of process to exercise personal jurisdiction. It is noteworthy that every subparagraph of Rule 4(j) speaks of or clearly contemplates "delivering a copy of the summons and of the complaint," with the sole exception of subparagraph c of subsection (9) quoted above. The omission of any reference to a summons in subparagraph 9(c) is, we think, significant. Had the Legislature intended to make a change in our practice so as to require the "useless formality" of issuance of a summons and return thereon that defendant was not to be found in the county as a prerequisite to validity of a service by publication, surely some reference to a summons would have been made in subparagraph 9(c) as it was in all other subparagraphs of Rule 4(j). It should also be noted that subparagraph 9(c) is itself expressed in the disjunctive; it does not require a showing both that the whereabouts of the party to be served cannot with due diligence be ascertained and that there has been a diligent but unsuccessful attempt to serve him under one of the preceding subparagraphs of subsection (9) under which a summons would necessarily have been issued.

We see no reason why, now more than formerly, due diligence should require performance of a useless formality. Nothing in the Rules of Civil Procedure indicates that the Legislature intended that it should. Logical interpretation of the language employed suggests strongly to the contrary.

The judgment dismissing plaintiff's action is reversed and this case is remanded to the District Court for further proceedings not inconsistent herewith.

Reversed and remanded.

BRITT and CLARK, JJ., concur.