Guthrie v. Ray

228 S.E.2d 471 (1976)

31 N.C. App. 142

Tony Eugene GUTHRIE v. Robert M. RAY.

No. 7628DC303.

Court of Appeals of North Carolina.

October 6, 1976.

*472 Swain, Leake & Stevenson by A. E. Leake, Asheville, for plaintiff-appellee.

Morris, Golding, Blue & Phillips by Steve Kropelnicki and James F. Blue, III, Asheville, for defendant-appellant.

HEDRICK, Judge.

Service of process in this case was attempted pursuant to G.S. 1A-1, Rule 4(j)(1)(a), which provides in pertinent part as follows:

"(j) Process manner of service to exercise personal jurisdiction. In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process shall be as follows: (1) Natural Person. Except as provided in subsection (2) below, upon a natural person: a. By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein;" (emphasis added).

The officer's return on the summons in this case states that the defendant was served as follows:

"[O]n 16th May 1972, at the following place: Route 3, Box 187, [Weaverville, N.C.] By: leaving copies with Mrs. C. *473 Ray (mother) who is a person of suitable age and discretion and who resides in the defendant's dwelling house or usual place of abode."

When the officer's return on the summons shows legal service, a presumption of valid service of process is created. Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239 (1957), 6 Strong, N.C. Index 2d, Process, § 4, p. 455. However, such a presumption may be rebutted. Harrington v. Rice, supra.

In Williams v. Hartis, 18 N.C.App. 89, 195 S.E.2d 806 (1973), where service of process was attempted pursuant to Rule 4(j)(1)(a), Judge Britt, speaking for this Court, said:

"Statutory provisions prescribing the manner of service of process must be strictly construed, and the prescribed procedure must be strictly followed; and, unless the specified requirements are complied with, there is no valid service." (citation omitted) Id. at 92, 195 S.E.2d at 808.

Although the trial court found as a fact that the return on the summons states that a Deputy Sheriff of Buncombe County served the defendant by leaving a copy of the summons and complaint with defendant's mother "in the defendant's dwelling house or usual place of abode," there is no evidence in this record to support such a finding. The officer's return on the summons merely indicates that the officer left a copy of the summons and complaint with defendant's mother, "who is a person of suitable age and discretion and who resides in the defendant's dwelling house or usual place of abode." The return clearly fails to disclose that service was had on the defendant by leaving a copy of the summons and complaint at defendant's dwelling house or usual place of abode as required by G.S. 1A-1, Rule 4(j)(1)(a). Indeed all of the evidence in the record tends to show that the defendant was a resident of Tennessee when service of process was attempted in North Carolina.

Since there is no evidence in the record to support the court's critical finding that service of process was had as prescribed by statute, its conclusion that, "[P]rocess in this case was duly served on the defendant on the 16th day of May, 1972," is erroneous.

For the reasons stated the order denying the defendant's motion to set aside the default judgment is reversed, and the cause is remanded to the District Court for the entry of an order setting aside the default judgment and dismissing the action.

Reversed and remanded.

BRITT and MARTIN, JJ., concur.