Van Buren v. Glasco

PARKER, Judge. The right of immediate appeal in this case is given by G.S. 1-277 (b). Grounds for personal jurisdiction exist as provided in G.S. 1-75.4, and the determination of this appeal de *5 pends upon whether service of process was made in the manner required by G.S. 1A-1, Rule 4(j) (l)a. In pertinent part that Rule provides that service upon a natural person not under disability may be made “ [b] y 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.” Appellant contends, first, that the house at which the deputy sheriff left the copies of the summons and complaint was not his “dwelling house or usual place of abode,” and, second, that his fifteen-year-old son was not a “person of suitable age and discretion.” We do not agree with either contention. [1] Although there have been many decisions concerning what is a “defendant’s dwelling house or usual place of abode” as that phrase is employed in a rule or statute similar to our Rule 4(j) (1) a, it is difficult to derive a satisfactory all-inclusive definition from the decided cases. See Annot., 32 A.L.R. 3d 112 (1970). “The decisions interpreting the term indicate that no hard-and-fast definition can be laid down, but .that what is or is not a party’s ‘dwelling house or usual place of abode’ within the meaning of the rule or statute is a question to be determined on the facts of the particular case.” 2 Moore’s Federal Practice (2d Ed. 1974) ¶ 4.11 [2], p. 1039. In the present case appellant’s own affidavit establishes that the house in Sanford, N. C., where the deputy sheriff delivered the papers to appellant’s son, was owned by appellant and his wife as tenants by the entirety, his wife and family resided there, and appellant himself, although working in South Carolina, regularly returned thereto on a frequently recurring basis. It would appear from the facts stated in his affidavit that the occasions on which appellant was physicially present at his Sanford residence occurred with such frequency and regularity that normally he would be present therein at least twice during any 30-day period in which he might be called upon to file an answer under Rule 12. Under these facts it is our opinion that the Sanford residence qualified as appellant’s “dwelling house or usual place of abode” within the meaning of Rule 4(j) (l)a. That appellant and his wife also owned a house in South Carolina, in which he resided while working in that State and where his wife and family usually came on those weekends when he was not with them in North Carolina, does not compel a holding that the North Carolina residence could *6 not be his “dwelling house or usual place of abode.” Indeed, because of his family’s continued occupancy of the North Carolina home and because of his regular and frequent return thereto, it would appear that appellant had a closer and more enduring connection with his North Carolina residence than he had with the South Carolina house. Certainly, when all of the circumstances are considered, his relationship and connection with the North Carolina dwelling were such that there was a reasonable probability that substitute service of process at that dwelling would, as it in fact here did, inform him of the proceedings against him in apt time to permit him to assert in timely fashion such defenses as he might have. Moreover, as one authority has pointed out in discussing the cognate Federal Rule, in a highly mobile society such as ours, “it is unrealistic to interpret Rule 4(d) (1) so that the person to be served only has one dwelling house or usual place of abode at which process may be left.” 4 Wright and Miller, Federal Practice and Procedure (1969), § 1096, p. 368. However, we are not called upon to decide in this case whether appellant’s South Carolina house might simultaneously qualify along with his North Carolina home as his “dwelling house or usual place of abode” for purposes of substituted service of process. We need only decide, as we do, that the North Carolina house so qualified. Although, as above noted, each case necessarily rests upon its own particular facts, our decision here finds support in Karlsson v. Rabinowitz, 318 F. 2d 666 (4th Cir. 1963). [2] We next examine appellant’s contention that his fifteen-year-old son was not a “person of suitable age and discretion” for purposes of Rule 4(j) (l)a. In this connection, we note that no exception was taken to the trial court’s finding of fact number 3 in which the court found that the deputy sheriff made his return on the summons indicating that copies of the summons and complaint were left with “a person of suitable age and discretion who resides in the defendant’s dwelling house or usual pláce of abode.” “When the return shows legal service by an authorized officer, nothing else appearing, the law presumes service. The service is deemed established unless, upon motion in the cause, the legal presumption is rebutted by evidence upon which a finding of nonservice is properly based. . . . Upon hearing such motion, the burden of proof is upon the party who seeks to set aside the officer’s return *7 or the judgment based thereon to establish nonservice as a fact; and, notwithstanding positive evidence of nonservice, the officer’s return is evidence upon which the court may base a finding that service was made as shown by the return.” Harrington v. Rice, 245 N.C. 640, 642, 97 S.E. 2d 239, 241 (1957). In the present case the only evidence presented by appellant to show that his son was not a “person of suitable age and discretion” was his son’s birth certificate which showed that he was born on 18 November 1957, thus making him fifteen years and nine months old at the time the papers were delivered to him by the deputy sheriff on 21 August 1973. No evidence was presented and no contention is made that appellant’s son lacked the intelligence and discretion ordinarily possessed by a boy of his age. Appellant contends, however, that a fifteen-year-old boy is, as a matter of law, not a “person of suitable age and discretion” within Rule 4(j) (l)a. We do not agree. Similar contentions were made and rejected in Day v. United Securities Corporation, 272 A. 2d 448 (D.C. Ct. App. 1970) ; Holmen v. Miller, 296 Minn. 99, 206 N.W. 2d 916 (1973) ; and Temple v. Norris, 53 Minn. 286, 55 N.W. 133 (1893). In Holmen v. Miller, supra, the Supreme Court of Minnesota was called upon to determine whether a thirteen-year-old daughter was a “person of suitable age and discretion” for purposes of substituted service of process upon her father. In holding the service valid in that case, the court said: “It may well be that a 13-year-old, or for that matter a person of any age, is not a person of suitable age and discretion for the purpose of the rule. However, the burden is upon the defendant, after a proper motion to the court, to prove that fact. The sheriff’s certificate in this case contained the statement that Jean Miller, contestee’s daughter, was a person of suitable age and discretion. We have held that the sheriff’s certificate is prima facie evidence of the allegations it contains and that a defendant has the burden of proving otherwise.” 296 Minn. at 104, 206 N.W. 2d at 919-20. The same rule applies in this State. Harrington v. Rice, supra. Appellant failed to carry the burden of showing that his son was not a person of suitable age and discretion for purposes of Rule 4(j) (1)a. *8 The order appealed from is Affirmed. Judges Britt and Vaughn concur.