Blair Auto Co. v. McLain

VaughN, J. Service of process, unless waived, is a jurisdictional requirement. If the summons and complaint were not served on defendant, the default judgment dated 11 April 1967 is void, and the proper procedure to attack it was by motion in the cause. Kleinfeldt v. Shoney’s, Inc., 257 N.C. 791, 127 S.E. 2d 573. A motion in the cause to set aside a judgment presents questions of fact and not issues of fact, and it is for the court to hear the evidence, find the facts, and render judgment. 7 Strong, N.C. Index 2d, Trial, § 18, p. 286. The facts found when supported by competent evidence, are conclusive. Coker v. Coker, 224 N.C. 450, 31 S.E. 2d 364. The following language from Harrington v. Rice, 245 N.C. 640, 97 S.E. 2d 239 is pertinent here: “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. Downing v. White, 211 N.C. 40, 188 S.E. 815; Smothers v. Sprouse, 144 N.C. 637, 57 S.E. 392. Upon hearing such motion, the burden of proof is upon the party who seeks to set aside the officer’s return 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. Downing v. White, supra; Long v. Rockingham, 187 N.C. 199, 121 S.E. 461; G.S. 1-592. “Service of process, and the return thereof, are serious matters; and the return of a sworn authorized officer should not 'be lightly set aside.’ Burlinghan v. Canady, 156 N.C. 177, 72 S.E. 324; Mason v. Miles, 63 N.C. 564; Hunter v. Kirk, 11 N.C. 277.” The evidence in the present case was contradictory. There is evidence in the record which would have sustained a finding that [569] Nora McLain was not served with process. On the other hand, there is competent evidence in the record on which the judge could properly base each of his separately numbered findings of fact and his determination that she was served with process. The credibility of the witnesses and the weight of the evidence was for determination by the trial judge in discharging his duty to find the facts. Harrington v. Rice, supra. The facts found are sufficient to sustain the order entered. Affirmed. Mallaed, C.J., and Moekis, J., concur.