Ridge v. Wright

BRITT, Judge. Each defendant assigns as error the refusal of the trial court to grant his motion (s) to dismiss the action (s) as to him because of defective service of process or, in the alternative, to quash the purported service of process as to him. One of the reasons argued by defendants that the purported service of process was defective is that plaintiffs failed to file [611] affidavits and other documents required by G.S. 1-105(3). In an addendum to the record, filed 8 January 1976, plaintiffs attempted to present the affidavits and other documents to this court, contending they were considered by the trial court at the hearing on the motions but were inadvertently omitted from the record on appeal. The affidavits indicate that while they bear the date of 29 September 1975 (the date of the hearing) they were not filed in superior court until 6 January 1976. The record on appeal, prepared by defendant appellants, was filed in this court on 5 December 1975. On 2 April 1976 this court ordered the affidavits stricken from the record. Without the affidavits of compliance and other documents required by G.S. 1-105(3), clearly the service of process was defective. We think the ends of justice require that in our discretion we vacate the portions of the orders appealed from denying defendants’ motions to dismiss or, in the alternative, to quash the service of process, and remand the causes to the superior court for another hearing on defendants’ motions asking for that relief. It is so ordered. Watkins v. Grier, 224 N.C. 334, 30 S.E. 2d 219 (1944) ; In re Will of Herring, 19 N.C. App. 357, 198 S.E. 2d 737 (1973). Remanded. Judges Vaughn and Arnold concur.