Groce v. Groce, 214 N.C. 398 (1938)

Nov. 9, 1938 · Supreme Court of North Carolina

214 N.C. 398

E. C. GROCE v. WALTER GROCE et al.

(Filed 9 November, 1938.)

1. Process § 5 — Averment that defendants are nonresidents is insufficient to support service of summons by publication.

A sheriff’s return that after due inquiry defendants “are said to be residents and citizens” of another State, and an averment in the complaint, used as an affidavit, that defendants were residents of such other State, is insufficient to support service of summons by publication, since notwithstanding such nonresidence defendants might be visitors in the State and amenable to process here, and it being required that it appear by proper averment that defendants “cannot, after due diligence, be found in the State,” C. S., 484.

2. Judgments §§ 22b, 26—

A judgment entered upon a fatally defective service of summons by publication is void for want of jurisdiction, and defendants’motion in the cause to set same aside should be allowed.

Appeal by movants, W. I. Groce and Amanda Jane Groce, from Pless, J., at February Term, 1938, of YabeiN.

On 6 April, 1937, E. C. Groce instituted an action against the movants herein in the Superior Court of Yadkin County by (1) issuing summons, (2) filing “complaint .and affidavit,” (3) obtaining warrant of attachment, and (4) notice of service by publication. On the same day, the sheriff made return on the summons as follows: “Returned not served. After due search and inquiry the defendants Walter Groce and Amanda Jane Groce are said to be residents and citizens of the State of Ind.”

The complaint, used as an affidavit, contains the averment that “the defendants and each of them are residents of the County of Henry and State of Indiana.”

Tbe defendants filed no' answer and made no appearance.

At tbe December Term, 1937, Yadkin Superior Court, issues were submitted to a jury and answered in favor of tbe plaintiff, and judgment was entered tbereon directing sale of land, etc.

Thereafter, in February, 1938, tbis action was begun to restrain tbe sale of tbe land and to bave tbe judgment vacated. By consent, tbe matter came on for bearing before Pless, J., upon tbe return date of the restraining order, at wbicb time tbe plaintiffs were allowed to treat their complaint as an affidavit and motion in the original cause.

Tbe motion to vacate tbe judgment in tbe original action was denied, and from tbis ruling tbe movants appealed, assigning errors.

Parles G. Hampton and Don A. Walser for movants, appellants.

F. D. B. Harding and William M. Allen for respondents, appellees.

Stacy, 0. J.

Tbe record contains no averment, by affidavit or otherwise, that tbe defendants “cannot, after due diligence, be found in tbe State.” Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737. Tbis is an essential requirement to obtain service of summons by publication, C. S., 484, and it must be made to appear “to tbe satisfaction of tbe court.” Bethell v. Lee, 200 N. C., 755, 158 S. E., 493; Grocery Co. v. Bag Co., 142 N. C., 174, 55 S. E., 90; Wheeler v. Cobb, 75 N. C., 21. It will not suffice simply to say tbe defendants are nonresidents of tbe State. Davis v. Davis, 179 N. C., 185, 102 S. E., 270. Non constat that they may not be frequent visitors to tbe State and amenable to process while here. Hill v. Lindsay, 210 N. C., 694, 188 S. E., 406.

In Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315, it was held that service of summons by publication, on a defective affidavit, was ineffectual to bring tbe defendants into court. To like effect is tbe decision in Denton v. Vassiliades, supra.

It is tbe universal bolding that unless one named as a defendant has been brought into court in some way sanctioned by law, or makes a voluntary appearance in person or by attorney, a judgment rendered against him is void for want of jurisdiction. Stevens v. Cecil, ante, 217; Downing v. White, 211 N. C., 40, 188 S. E., 815; Harrell v. Welstead, 206 N. C., 817, 175 S. E., 283.

There was error in denying tbe motion of appellants. Denton v. Vassiliades, supra.

Error.