Nash County v. Allen

85 S.E.2d 921 (1955)

241 N.C. 543

NASH COUNTY, a body politic and corporate, v. S. R. ALLEN and J. M. Allen.

No. 98.

Supreme Court of North Carolina.

March 2, 1955.

*924 James D. Gilliland, Warrenton, for R. R. Davis.

Cooley & May, Nashville, for Madeline D. Bobbitt.

J. P. Bunn, Rocky Mount, for Nash County.

Beam & Beam, Malone & Malone, Louisburg, for S. R. Allen.

WINBORNE, Justice.

While appellants in their brief present nine questions as being involved on this appeal, the first elicits the determinative answer. The question: "Was the service of summons upon the defendant, S. R. Allen, by publication fatally defective?" The court held that it was, and, upon the record and facts found, we affirm.

Decisions of this Court uniformly hold that where service of summons is made by publication, the requirements of the statute must be strictly followed,and that everything necessary to dispense with personal service of summons must appear by affidavit. An affidavit on which publication is predicated is fatally defective in the absence of an allegation that the person on whom the summons is so served cannot, after due diligence, be found within the State. Among these decisions are: Wheeler v. Cobb, 1876, 75 N.C. 21, and Board of Com'rs of Roxboro v. Bumpass, 1951, 233 N.C. 190, 63 S.E.2d 144. In the latter case Barnhill, J., reviews and cites authorities in this State. Also in Groce v. Groce, 1938, 214 N.C. 398, 199 S.E. 388, opinion by Stacy, C. J., the pertinent cases are assembled. Likewise the decisions are listed in the Annotation 21 A.L.R.2d 934 note.

Further rehashing of the rule would be merely repetitious. Hence the judgment below is

Affirmed.