Philpott v. Johnson

247 S.E.2d 781 (1978) 38 N.C. App. 380

Sandra Elaine PHILPOTT
v.
Sam Edward JOHNSON.

No. 7714SC1031.

Court of Appeals of North Carolina.

October 17, 1978.

W. W. Perry and Malone, Johnson, DeJarmon & Spaulding by Albert L. Willis, Durham, for plaintiff-appellant.

Smith, Anderson, Blount & Mitchell by J. G. Billings, Raleigh, for defendant-appellee.

WEBB, Judge.

We hold it was error for the superior court to quash the service of summons and we reverse.

The defendant first contends that since the judge of superior court entered the order quashing the service without any findings of fact and without a request for findings that the superior court judgment is deemed to be supported by the proper findings and the plaintiff is precluded from challenging them. Sherwood v. Sherwood, 29 N.C.App. 112, 223 S.E.2d 509 (1976) holds that on a motion to dismiss for insufficiency of process where the trial court entered an order without making findings of fact, the Court of Appeals will determine as a matter of law if the manner of service of process was correct. In this case there is no dispute as to the manner of service of process. We hold we may examine this service to see if it is a correct service of the summons.

The defendant also contends that the plaintiff did not file with the court an affidavit showing service by publication upon completion of the service. In order for service by publication to be complete, Rule 4(j)(9)c of the North Carolina Rules of Civil Procedure dealing with service by publication provides in part:

"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."

The defendant argues that since the required affidavit was not filed until after the motion to quash had been filed and some six months after the last day of publication the required affidavit was not filed "upon completion of such service." No prejudice has been shown to the defendant as a result of the plaintiff's waiting approximately six months to file the affidavit. We hold that in this case the affidavit was filed "upon completion of such service."

Finally, the defendant contends that the affidavit does not comply with G.S. 1-75.10 dealing with proof of service of process which says:

"Where the defendant appears in the action and challenges the service of the summons upon him, proof of the service of process shall be as follows:

* * * * * *

(2) Service of Publication.—In the case of publication, by the affidavit of the publisher or printer, or his foreman or principal clerk, . . .."

The defendant contends that the affidavit was not made by the "publisher or printer, or his foreman or principal clerk," but by an agent of the publisher as shown on the affidavit. The affidavit shows that the publisher is a corporation. Corporations act through agents. We hold that it is compliance with the statute when an agent executes an affidavit for the corporation.

For the reasons stated in this opinion, we hold the defendant was properly served by publication.

Reversed and remanded.

ARNOLD and ERWIN, JJ., concur.