Scott Co. v. Jones Hooker v. Jones

Appeal oe S. D. Scott & Co. DeviN, J. The court below ruled that the purported service of process by publication upon the defendant Jones was invalid, and that the judgment based thereon created no lien on the fund derived from the sale of defendant’s real property. The appeal presents for review the propriety of this ruling. The only attack upon the validity of the proceedings whereby this plaintiff sought to bring the defendant Jones into court was that the' publication in the newspaper of the summons and notice of attachment was insufficient. The statute, G.S. 1-99, prescribes that service of summons by publication shall be for “not less than once a week for four successive weeks,” and in like manner the notice of attachment must be published once a week for four consecutive weeks. G.S. 1-440.7, G.S. 1-440.14 (Session Laws 1947, c. 693, s. 1). Here the first publication in the newspaper was on Saturday, 24 April; the next on Monday, 26 April, Monday, 3 May, and, last, Monday,' 10 May. So that the entire period of publication occupied 16 days. Another statute, G.S. 1-100,: provides that the summons shall be deemed served at the expiration of 7 days from date of last publication. Thus, according to appellant’s interpretation of the statute, 23 days after first publication the defendant was “then in court.” *78 We think the court ruled correctly that the publication was insufficient to constitute valid service. The service of process by publication upon an individual nonresident, as here alleged, is valid only when the ■provisions of the statutes authorizing constructive service have been strictly complied with. Southern Mills, Inc. v. Armstrong, 223 N.C. 495, 27 S.E. 2d 281; Ditmore v. Goins, 128 N.C. 325, 39 S.E. 61. The primary purpose of the requirements as to publication is to give notice to the defendant, and publication in a newspaper of general circulation in the County is permitted as the most likely means available for that purpose. Hence, the minimum time prescribed is essential for establishing constructive notice. Publication for a period, or in a manner, less than that prescribed would be insufficient in law to bring the defendant constructively into court or justify a judgment based thereon. Guilford Co. v. Georgia Co., 109 N.C. 310, 13 S.E. 861; 50 C.J. 540. The requirement that publication be made not less than once a week for four successive weeks is not complied with by the publication here shown. The statutory provisions as to time and method of giving notice are mandatory. According to Webster a week is “a period of seven days, usually reckoned from one Sabbath or Sunday to the next,” but when used to denote a space of time it usually means seven days duration without regard to the particular day on which it commences. Leach v. Burr, 188 U.S. 510, 52 A.J. 337. The expression not less than once a week for four successive weeks contemplates a publication once each week for four consecutive weeks, and this should be understood to require that the publications be spaced substantially at intervals of 7 days for four successive weeks as being best calculated to give notice. 31 A.J. 429; Young v. Downey, 145 Mo. 250; Morse v. U. S., 29 App. (D.C.) 433. The four publications need not occupy the full period of 28 days and may be deemed completed with less than that number of days intervening between first and last publication when considered in connection with the statutory provision that service shall be deemed complete 7 days after last publication. Thus, under the statutes now in effect, a publication on the 1st, 8th, 15th, and 22nd would be sufficient, though there be less than 28 days between the first and last publication. Guilford Co. v. Georgia Co., supra; Myakka Co. v. Edwards, 68 Fla. 372; Owens v. Graetzel, 146 Md. 361, 39 A.L.R. 950; In re Wright, 224 N.Y. 293; 50 C.J. 540; 42 A.J. 87; 52 A.J. 337. See also Heist v. Dunlap Co., 193 Ga. 462; Hollister v. Vanderlin, 165 Pa. 248; Ann. Cas. 1917 B, 209. But the publication here shown must be held insufficient to give the court jurisdiction or to authorize a valid judgment based thereon. While the decisions of this Court are not directly in point, and the decisions in other jurisdictions are not uniform and afford but little assistance in determining the precise question now presented, we think *79 tbe rule herein stated interprets tbe legislative purpose in tbe enactment of tbe statutes quoted relating to tbe service of process by publication. It is argued tbat tbe publication bere of tbe summons on Saturday, 24 April, and again on Monday, tbe 26tb, showed publication on a day of each week, and hence constituted two weeks publication. We cannot agree. Tbis interpretation of tbe statute would reduce tbe period and method of publication below tbe minimum required to constitute legal notice which would subject defendant’s real property to tbe jurisdiction of tbe court. While tbe judgment of tbe Lindsey-Robinson Co. seems to have been rendered by default final upon a complaint for goods sold and delivered (G.S. 1-211, G.S. 1-212), tbe judgment was not void, and there was no effort at tbe time of tbe bearing to attack it as irregular. Hence, tbe ruling of tbe judge below must be upheld. Supply Co. v. Plumbing Co., 195 N.C. 629, 143 S.E. 248; Jeffries v. Aaron, 120 N.C. 167, 26 S.E. 696. Appeal op LiNdsey-RobiNsoN Co. At tbe bearing on tbe respective motions of Scott & Co. and Lindsey-Robinson Co. as judgment creditors of defendant Jones to be declared entitled to tbe fund in tbe bands of tbe Clerk derived from sale of defendant’s real property, counsel representing defendant Jones appeared and orally requested tbe allotment of tbe defendant’s homestead exemption in tbe $998 fund, on tbe ground tbat be was and still is a resident of tbe State. Tbe court so found and rendered judgment accordingly. Lindsey-Robinson Co. appealed. Jones did not personally appear, nor has be appeared in any of tbe proceedings berein referred to, nor bas be testified or offered any evidence or affidavit on tbe issue. Tbe appellant offered several affidavits in opposition to defendant’s motion. From tbis evidence it appears tbat Jones sold out bis business in Elizabeth City 19 March, 1948; tbat thereafter be could not be found in Pasquotank or Currituck Counties; tbat from information derived from bis family and others tbe Sheriffs of these counties testified on information and belief Jones bad removed from tbe State and was not a resident of North Carolina; tbat according to tbe testimony of the Vice-President of Rosedale Dairy of Norfolk, Virginia, defendant Jones bas been employed since middle of September as a driver of one of its delivery trucks in Norfolk; tbat be gave bis borne address as 620 South Street, Portsmouth, Virginia. Counsel for defendant Jones offered only tbe affidavit of some person in Portsmouth tbat be was not known at tbat address. While it seems Jones was formerly a resident of Pasquotank County, and nothing else appearing, would be presumed to have continued to reside there, tbe evidence in tbe record rebuts tbat presumption. Homestead interest in land is terminated by tbe owner’s removal from tbe *80 State. Constitution of North Carolina, Art. X, see. 2; Baker v. Legget, 98 N.C. 304, 4 S.E. 37; Fulton v. Roberts, 113 N.C. 421, 18 S.E. 510; Brann v. Hanes, 194 N.C. 571, 140 S.E. 292; Ransom v. Commissioners, 194 N.C. 237, 139 S.E. 232; Owens v. Chaplin, 228 N.C. 705, 47 S.E. 2d 12. While the findings of the judge, when based on evidence, are conclusive as to facts found, this rule does not apply when there is no evidence to support the finding. The exception of the Lindsey-Robinson Co. on this ground must be sustained, and the order of the judge, based on such finding, which holds that the fund is subject to defendant’s homestead right, must be set aside as improvidently entered. No procedural questions were raised in any of the matters presented for hearing below. ■ On appeal of Scott & Co.: Judgment affirmed. On appeal of Lindsey-Robinson Co.: Judgment reversed.