Emanuel v. Fellows

267 S.E.2d 368 (1980) 47 N.C. App. 340

Mickey Michelle EMANUEL
v.
Norris L. FELLOWS.

No. 7914SC1112.

Court of Appeals of North Carolina.

June 17, 1980.

Randall, Yaeger, Woodson, Jervis & Stout by John C. Randall, Durham, for plaintiff-appellee.

Haywood, Denny & Miller by John D. Haywood, Durham, for defendant-appellant.

VAUGHN, Judge.

Neither party questions the ruling of the trial court that personal service on defendant by delivering copies to his wife on 2 May 1979 was ineffective to obtain personal jurisdiction over defendant. The summons served on defendant on 2 May 1979 was issued on 5 October 1978 and, therefore, was not served within thirty days after it was issued and it had never been endorsed until 8 March 1979, more than ninety days after its original issuance. The alias and pluries summons issued 17 January 1979 was not served at this time. Both parties submit this personal service was ineffective under Cole v. Cole, 37 N.C.App. 737, 247 S.E.2d 16 (1978).

The sole issue raised by this appeal is whether jurisdiction over the person of defendant was properly obtained through service by publication pursuant to G.S. 1A-1, Rule 4(j)(9)c. We hold there was proper service by publication on defendant and that, therefore, defendant's motion to dismiss for lack of personal jurisdiction, insufficiency of process and insufficiency of service of process pursuant to G.S. 1A-1, Rule 12(b)(2)(4)(5) was properly denied by the trial court.

Service of process by publication is in derogation of the common law and statutes authorizing it are strictly construed both as grants of authority and in determining whether service has been made in conformity with the statute. Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138, rehearing den., 285 N.C. 597 (1974); Thomas v. Thomas, 43 N.C.App. 638, 260 S.E.2d 163 (1979).

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). . . .

If the party's post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the party at or immediately prior to the first publication a copy of the notice of service of process by publication. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence. Upon completion of such service there shall be filed with the court an affidavit showing the publication and mailing in accordance with the requirements of G.S. 1-75.10(2) and the circumstances warranting the use of service by publication. . . .

G.S.1A-1, Rule 4(j)(9)c. Defendant contends that the entire publication procedure was improper because in the exercise of due diligence plaintiff could have discovered defendant's address, whereabouts, dwelling house or usual place of abode and could, therefore, have served him with process in a manner more likely to have given him actual notice than did the service by publication. The question is thus whether plaintiff exercised the due diligence required of the statute before service by publication is proper.

Plaintiff, in October 1978, attempted to have the sheriff serve defendant personally with process at 803 Murray Avenue, the address shown in the then current Durham telephone directory. Upon learning that the sheriff was unable to serve defendant personally, plaintiff's counsel placed a call to the number beside defendant's address in the then current Durham telephone directory. The number was revealed to be no longer in service. The directory assistance operator was called. The operator stated there was no other listing for defendant. Plaintiff's counsel, according to his affidavit, then contacted the insurance carrier for defendant which could furnish no other address for defendant other than 803 Murray Avenue. Plaintiff then issued a new summons and commenced service by publication. Just prior to commencing service of process by publication, a copy of the new summons, complaint and notice of service by publication were mailed to defendant's insurance carrier. A telephone directory listing defendant's current address was not published until after service by publication had been completed. We hold these efforts by plaintiff constituted due diligence in attempting to ascertain defendant's address, whereabouts, dwelling place or usual place of abode.

Defendant points to several things he thinks should have been done if the standard of due diligence were to be met by plaintiff. Plaintiff did not, for example, interview or call defendant's old neighbors at 803 Murray Avenue, the realtor selling the 803 Murray Avenue residence or the deputy sheriff who attempted to serve process at this address. Plaintiff did not contact and check the records of any governmental agencies such as the post office, the Department of Transportation in Raleigh or the county register of deeds or clerk of court. Defendant contends he should have done all these things. Such investigation is commendable and should be encouraged. However, we do not wish to make a restrictive mandatory checklist for what constitutes due diligence for purposes of permitting Rule 4(j)(9)c publication. Rather, a case by case analysis is more appropriate. Under the facts and circumstances of this case, when plaintiff's counsel contacted directory assistance and defendant's insurer for his address to no avail, he acted with due diligence in attempting to determine defendant's address, whereabouts or usual place of abode.

Affirmed.

PARKER and HEDRICK, JJ., concur.