Coble v. Brown

159 S.E.2d 259 (1968) 1 N.C. App. 1

Phillip Lee COBLE and Gladys Marie Coble, Plaintiffs,
v.
Lloyd Dewitt BROWN, Defendant.

No. 67SC16.

Court of Appeals of North Carolina.

February 21, 1968.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendant appellant.

Douglas, Ravenel, Hardy & Crihfield, Greensboro, for plaintiffs appellees.

MORRIS, Judge.

Defendant assigns as error the Court's consideration of hearsay evidence contained in the Coble and Strader affidavits; making certain findings of fact based on this incompetent evidence; and concluding as a matter of law that defendant was duly served with process under G.S. § 1-105 and G.S. § 1-105.1 and defendant had wholly complied with the provisions of said statutes. If there is competent evidence to support the Court's findings of fact, we are, of course, bound by the findings. Bigham v. Foor, 201 N.C. 14, 158 S.E. 548 (1931).

G.S. § 1-105 sets out the procedures to be followed in effecting service on nonresident drivers of motor vehicles and upon the personal representatives of deceased nonresident drivers of motor vehicles. By General Statutes § 1-105.1, the provisions of § 1-105 are made applicable "to a resident of the State at the time of the accident or collision who establishes residence outside the State subsequent to the accident or collision and to a resident of the State at the time of the accident or collision who departs from the State subsequent to the accident or collision and remains absent therefrom for sixty (60) days or more continuously whether such absence is intended to be temporary or permanent."

No question is raised as to whether defendant was a resident of the State at the time of the collision complained of.

To sustain service of process upon defendant under these statutes, the plaintiffs must show one of two circumstances; either: (1) that defendant had established a residence outside the State subsequent to the accident or collision, or (2) that he had left the State subsequent to the collision complained of and remained absent from the State for sixty days or more continuously.

Service of process, in order to acquire jurisdiction of the court over the person and property of citizens of the State, has always been, and properly so, carefully regulated. Careful regulation becomes even more necessary in situations where the parties must resort to constructive or substituted service. At the outset, it must be noted that we are here dealing with a proceeding in personam and not a proceeding in rem. Substituted or constructive service of process is a radical departure from the rule of the common law, and therefore statutes authorizing it must be strictly construed both as to the proper grant of authority for such service and in determining whether effective service under the statute has been made. Harrison v. Hanvey, 265 N.C. 243, 143 S.E.2d 593 (1965).

The object of all process is to give the person to be affected by the judgment notice that an action has been brought against him and an opportunity to defend. The possibility of defendant's receiving notice must be even more zealously guarded where the action is in personam.

G.S. § 1-98.2, providing for service by publication in certain actions, is designed to provide for a constructive service of process on nonresidents in certain instances in in rem or quasi in rem actions, and in actions in personam where the defendant, a resident of the State, has departed the State or conceals himself with intent to defraud his creditors or avoid service of process. This statute specifically provides that where the person to be served cannot after due diligence be found in the State and that fact appears by affidavit to the satisfaction of the court, the court may grant an order that the service be made by publication.

The Supreme Court has held that an averment in the words of the statute [G.S. § 1-98.2] of the ultimate fact "that, after due diligence, personal service cannot be had within the state," was a sufficient averment of due diligence and sufficient compliance with statutory requirements without stating any of the probative, or evidentiary facts. Brown v. Doby, 242 N.C. 462, 87 S.E.2d 921 (1955).

The North Carolina Supreme Court, in Harrison v. Hanvey, supra, recognized that, although the weight of authority is to the contrary, the rule of Brown v. Doby, supra, is the law applicable in this State. In the Harrison case, however, the section of G.S. § 1-98.2 before the Court was Section (6) providing for service by publication "where the defendant, a resident of this State, has departed therefrom or keeps himself concealed therein with intent to defraud his creditors or to avoid the service of summons". The action was an in personam action brought to recover for personal injuries resulting from an automobile collision allegedly caused by defendant's negligence. Defendant entered a special appearance and moved to quash the purported service and for dismissal of the action for want of jurisdiction, contending, among other things, that defendant was not a member of the class defined by G.S. § 1-98.2(6). The Court said, "Assuming that the same rule (referring to Brown v. Doby, supra) would apply to an averment of absconding or concealment, the court must hear the evidence, find the facts, and determine the validity of the service, when a defendant, upon a motion to vacate an order for publication and to quash the service based upon it, questions the sufficiency of the affidavit or evidence upon which plaintiff proceeds or offers evidence contradicting it".

The case before us arises under G.S. § 1-105.1, and a mere averment of due diligence sufficient to support service by publication in an in rem action under G.S. § 1-98.2 is not sufficient here.

Here defendant contends that he is not within the class of persons covered by G.S. § 1-105.1 for that he was a resident of North Carolina at the time of the accident and remained a resident of North Carolina, made no attempt to conceal his whereabouts and was a resident of Guilford County at the time of the purported service of process, and had not left the State for any period of time after the collision complained of.

Upon his motion to quash the service and dismiss the action, it became incumbent upon plaintiffs to present evidence to support the service of process.

It is true that the statute does not require that plaintiffs must set forth in their complaint or by affidavit the facts giving rise to the conclusion that defendant comes within the purview of the statute; nevertheless, upon attack by special appearance and motion to quash, a showing is required of the facts essential to jurisdiction. Robinson v. D'Odom, 2 Misc. 2d 963, 150 N.Y.S.2d 700 (1956); Hart v. Queen City Coach Co., 241 N.C. 389, 85 S.E.2d 319 (1954); Bigham v. Foor, supra.

We now look at the evidence submitted by plaintiffs in support of the service on defendant.

The affidavit of plaintiffs contains no competent evidence on which a finding of fact could be based. Plaintiff Coble simply averred that he was "informed and believed" that defendant had removed himself from his last known address and had left the State and remained absent for more than sixty days continuously subsequent to the collision complained of and was residing somewhere in Florida. Strader's affidavit avers that he talked with a woman who he "was informed" and believed was defendant's sister who told him that it was her "information and belief" that defendant was living in Florida; that he was "informed and believes and therefore says" that the only information he was able to obtain concerning the whereabouts of Lloyd Dewitt Brown indicated that the said defendant was residing in the State of Florida, address unknown. This evidence is manifestly hearsay evidence, not admissible and defendant's objection thereto is entirely proper. When plaintiffs' affidavits are stripped of incompetent evidence, they are left with the statement of the deputy sheriff that he went to defendant's last known address on two occasions and defendant was not there; that he made further investigations and could not locate the whereabouts of Lloyd Dewitt Brown. Conceding, for the purpose of argument only, that this might be held sufficient to support an averment of due diligence under the requirements of G.S. § 1-98.2, we hold that it is insufficient to make out a prima facie case to support service of process under G.S. §§ 1-105 and 1-105.1.

Plaintiff relies on Scott & Co. v. Jones, 230 N.C. 74, 52 S.E.2d 219 (1949). However, that case involved service of process by publication under G.S. § 1-98.2; and, in addition to the evidence of the sheriff that from information derived from defendant's family he testified on information and belief that defendant had moved from the State and was not a resident of North Carolina, the plaintiff introduced testimony of defendant's employer to the effect that defendant had been employed by him in Virginia and gave his home address as 620 South Street, Portsmouth, Virginia.

We have not been cited to a case in this or any other jurisdiction holding that such scant competent evidence as is before the Court is sufficient to support a finding that defendant had departed the State and remained absent for a period of sixty days or more. Since the element of jurisdiction is necessary for plaintiffs' case, the failure of proof must lie with plaintiffs.

The trial court erred in denying the motion to quash. There was not sufficient competent evidence upon which to base a finding of fact that defendant departed from the State subsequent to the collision and remained absent therefrom for sixty days or more continuously.

Under this view of the case, defendant's assignment of error as to whether plaintiffs wholly complied with the provisions of G.S. §§ 1-105 and 1-105.1 is not considered.

Reversed.

CAMPBELL and PARKER, JJ., concur.