Williams v. Hartis

195 S.E.2d 806 (1973) 18 N.C. App. 89

Allen B. WILLIAMS
v.
Dennis Wayne HARTIS and Ella A. Hartis.

No. 7326SC230.

Court of Appeals of North Carolina.

April 25, 1973.

Hedrick, McKnight, Parham, Helms, Warley & Kellam by Thomas A. McNeely, Charlotte, for plaintiff appellant.

Kennedy, Covington, Lobdell & Hickman by Charles V. Tompkins, Jr., and F. Fincher Jarrell, Charlotte, for defendant appellee.

BRITT, Judge.

The first question presented by this appeal relates to the validity of the service of process on the male defendant.

We think service of process on the male defendant in this action is controlled by G.S. § 1A-1, Rule 4(j), (1)a, which provides in pertinent part as follows:

"``(j) Process—manner of service to exercise personal jurisdiction.—In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process shall be as follows:

(1) Natural Person.—Except as provided in subsection (2) below, upon a natural person:

a. By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein;' (Emphasis added)"

Statutory provisions prescribing the manner of service of process must be strictly construed, and the prescribed procedure must be strictly followed; and, unless the specified requirements are complied with, there is no valid service. 62 Am.Jur.2d, Process, § 42, p. 823. Although our research fails to disclose that the Supreme Court of North Carolina has ruled on the specific question presented here, the court has held that when husband and wife were named defendants, delivery of a copy of the summons and complaint to the husband with instructions to deliver the copy to defendant wife was not valid service. Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239 (1957). We recognize that Harrington predates the current Rules of Civil Procedure but it tends to show that the court favors strict construction of statutes providing for service of process.

We hold that the service of process on the male defendant in the case at bar was invalid.

The next question presented is: Did the male defendant waive his defense of invalid service of process?

On this question plaintiff contends first that the defense was waived because the male defendant did not, in his answer or in his motion for summary judgment, state the rule number under which he was proceeding or any of the provisions of G.S. § 1A-1, Rule 12(b).

G.S. § 1A-1, Rule 12(b), provides in pertinent part that "(e)very defense, in law of fact, to a claim for relief in any pleading,. . . shall be asserted in the responsive pleading thereto if one is required, except that the following defense may at the option of the pleader be made by motion: * * * (5) Insufficiency of service of process * * *."

The General Rules of Practice for the Superior and District courts supplemental to the Rules of Civil Procedure adopted pursuant to G.S. § 7A-34 are found in 276 N.C. 735, et seq. Rule 6 of said General Rules provides as follows: "All motions, written or oral, shall state the rule number or numbers under which the movant is proceeding. (See Rule 7 of Rules of Civil Procedure.)" With reference to General Rule 6, see the following cases: Clouse v. Motors, Inc., 14 N.C.App. 117, 187 S.E.2d 398 (1972); Lehrer v. Manufacturing Co., 13 N.C.App. 412, 185 S.E.2d 727 (1972); Mull v. Mull, 13 N.C.App. 154, 185 S.E.2d 14 (1971); and Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234 (1971).

In the instant case, although worded as a motion the defense of insufficiency of service of process was asserted in the responsive pleading, therefore, we hold that Rule 6 of the General Rules of Practice which applies to motions is not applicable.

Plaintiff further contends that the male defendant waived his defense of insufficiency of service of process by making a general appearance as envisioned by G.S. § 1-75.7(1). Specifically, plaintiff argues that by (1) obtaining an enlargement of time within which to file answer or other pleading and (2) proceeding under G.S. § 1A-1, Rule 26, to take plaintiff's deposition, defendant made a general appearance in this action. We think this contention was answered adversely to plaintiff in Spartan Leasing, Inc. v. Brown, 14 N.C. App. 383, 188 S.E.2d 574 (1972), and deem it unnecessary to repeat the reasoning set forth in that opinion.

We hold that by obtaining an enlargement of time within which to file answer or other pleading and taking plaintiff's deposition, the male defendant did not waive his defense of insufficiency of service of process.

The order appealed from is

Affirmed.

MORRIS and VAUGHN, JJ., concur.