Ray v. Pilot Fire Insurance

The opinion of the Court was delivered by Mr. Justice Watts. This is an appeal from a directed verdict in favor of the respondent by his Honor, Judge Mauldin, for the sum of $1,200. The exceptions, four in number, raise the simple question: “Did the presiding Judge err in denying full faith and credit to the judgment obtained in the Court of North Carolina on the sole ground that the filing of the complaint on the 29th day of March, 1922, was such a jurisdictional defect as rendered said judgment void?” Both the plaintiff and defendant in that action lived ‘in Union, S. C. The cause of action on the policy arose at Union, S. C. The policy must have shown where the respondent lived. The Consolidated Code of North Carolina, Civil Procedure, § 486, provides: “Piling Complaint. In all cases wherein publication is made complaint must be -filed before the expiration of the time of publication ordered.” The record in this case shows that the complaint was not filed in accordance with this provision. The affidavit to obtain the publication is fatally defective, under the North Carolina law, on its face, in that it does not show that due diligence was used to find the defendant in the State of North Carolina, which is necessary to secure the publication. Davis v. Davis, 179 N. C., 185; 102 S. E., 270. Sawyer v. Camden Run Drainage, 179 N. C., 182; 102 S. E., 273. *325 Sheldon v. Kivett, 110 N. C., 408; 14 S. E., 970. In Davis v. Davis, supra, we find: “The third objection must be sustained. Wheeler v. Cobb, 75 N. C., 21, which is approved in Faulk v. Smith, 84 N. C., 503, is directly in point. In that case it was held that an affidavit, filed to procure an order of publication, which stated that the defendant was a nonresident, was fatally defective because of failure to allege that the defendant could not after due diligence, be found within the state, and the Court held that the defendant in that case was in fact a nonresident, which are identical with the facts in this record. Bynum, J., speaking for the Court says: ‘The service of summons by publication is fatally defective, in that it does not conform to the requirements of the statute. The foundation and first step of service by publication is an affidavit that “the person on whom the summons is to be served cannot, after due diligence, be found within the state.” Bat. Rev. C. 17, § 83. This requirement was omitted in the affidavit, why it is hard to conceive, as it was made by the attorney himself, who, as a prudent practitioner, should have had the statute before him in drafting the affidavit, for this Court has repeatedly held that the provisions of this statute must be strictly followed. Spiers v. Halstead, 71 N. C., 210. Everything necessary to dispense with personal service of the summons must appear by affidavit. The mere issuing of a summons to the Sheriff of the County of Pasquotank, and his indorsement upon it the same day after it came to hand that “the defendant is not found in my county,” is no compliance whatever with the law; for it might well be that the defendant was at that time in some other county in the State, and that the plaintiff knew it, or by due diligence could have known it, and make upon the defendant a personal service of the’ summons. Every principle of .law requires that this personal service should be made, if compatible with reasonable diligence.’ ” *326 In the Sawyer Case, 179 N. C., 182; 102 S. E., 273, we find this r “The authorities seem to be decisive that, under our statute as now framed, the allegation that a defendant cannot be found in the State after diligent search is an essential averment to a valid service of original process by publication. Davis v. Davis, 102 S. E., 270, at the present term.” We are satisfied that, under the Code of Civil Procedure of North Carolina and the decisions of her Courts, the judgment obtained in the North Carolina Court was void. All exceptions are overruled and judgment affirmed. Mr. Ci-iiEE Justice Gary and Mr. Justice Fraser concur.