Grohman v. Jones

CAMPBELL, Judge. Defendant Handi-Clean Products, Inc., assigns as error the denial of the motion to quash service of process as to N. Linwood Frankie Jones. G.S. 1-105, at the time this action was commenced, set forth the procedures to be followed in effecting service on nonresident drivers of motor vehicles. Under G.S. 1-105.1, the provisions of G.S. 1-105 were made applicable “to a resident of the [100] State at the time of the accident or collision who establishes residence outside the State subsequent to the accident or collision and to a resident of the State at the time of the accident or collision who departs from the State subsequent to the accident or collision and remains absent therefrom for sixty (60) days or more, continuously whether such absence is intended to be temporary or permanent.” No question having been raised as to whether defendant Jones was a resident at the time of the accident complained of to obtain service of process under these statutes, plaintiffs must show either: (1) that defendant had established a residence outside the State subsequent to the accident or collision, or (2) that he left the State subsequent to the accident or collision complained of and remained absent from the State for sixty days or more, continuously. Upon the motion to quash the service, it became incumbent upon the plaintiffs to present evidence to support the service of process. Coble v. Brown, 1 N.C. App. 1, 159 S.E. 2d 259 (1968). The answers to interrogatories served upon plaintiffs by defendant Handi-Clean indicated that neither plaintiff had any knowledge of the whereabouts of defendant Jones at any time subsequent to the accident and that any information concerning knowledge of the whereabouts of Jones must come from their attorney. The affidavit submitted by the attorney states that upon information and belief the defendant Jones has left the State and established residence elsewhere. But that statement is only hearsay and not competent evidence. Coble v. Brown, supra. When all incompetent evidence in the affidavit is disregarded, it states only that the summonses directed to the Sheriff of Alamance County were returned unserved and that the registered letters mailed by the Commissioner of Motor Vehicles to the defendant Jones at 1122 Graham Street, Burlington, North Carolina, were returned unclaimed. There is no competent evidence to show that defendant Jones had in fact left the State, and in view of that, it was error for the trial judge to deny defendant Handi-Clean’s motion to quash the service of process upon Jones. Coble v. Brown, supra, is controlling. Reversed. Judges Britt and Graham concur.