Seabrooke v. Hagin

PHILLIPS, Judge. Plaintiff sued defendant for damages allegedly resulting from a motor vehicular collision that occurred in Charlotte. The first summons issued was returned unserved by the Sheriff of Meck-lenburg County because he could not locate the defendant at the local address stated therein. Since defendant had a Wisconsin driver’s license when the collision occurred another summons was issued to him at the Wisconsin address shown thereon and this summons was served on the N.C. Commissioner of Motor Vehicles by the Sheriff of Wake County pursuant to the provisions of G.S. 1-105, and both the Commissioner and plaintiff sent the papers involved by registered mail to that address. Both sets of papers were returned to the sender stamped “unclaimed.” A timely answer to the complaint was not filed and plaintiff obtained an entry of default. Later defendant moved to set the default aside and to dismiss the complaint on the grounds of “insufficiency of process” under Rule 12(b)(4), N.C. Rules of Civil Procedure, and “insufficiency of service of process” under Rule 12(b)(5). When the motion was denied defendant immediately appealed to this Court. Though not discussed in the brief of either party defendant’s appeal is unauthorized and must be dismissed. An order ruling on the sufficiency of service of process is not immediately ap61 pealable; Love v. Moore, 305 N.C. 575, 291 S.E. 2d 141, reh. denied, 306 N.C. 393, 294 S.E. 2d 221 (1982); nor is an order refusing to set aside an entry of default. First-Citizens Bank & Trust Co. v. R & G Construction Co., 24 N.C. App. 131; 210 S.E. 2d 97 (1974); 1 Strong’s N.C. Index 3d, Appeal and Error Sec. 6.2 (1976). Appeal dismissed. Chief Judge Hedrick and Judge Martin concur.