Harrington v. RiceAnnotate this Case
97 S.E.2d 239 (1957)
245 N.C. 640
C. M. HARRINGTON and W. G. Broadfoot, co-partners, trading and d/b/a Hyman Supply Company, v. R. M. RICE and wife, Lora E. Rice.
Supreme Court of North Carolina.
March 20, 1957.
*240 Stevens, Burgwin & McGhee, Wilmington, for plaintiffs, appellants.
J. H. Ferguson, Wilmington, for defendant Lora E. Rice, appellee.
If in fact the summons and complaint were not served on the feme defendant as prescribed by G.S. § 1-94 and G.S. § 1-121, the default judgment of September 11, 1951, is void; and, since the return shows service, the appropriate procedure to set aside the judgment for nonservice was by motion in the cause. City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311, and cases cited; Caviness v. Hunt, 180 N.C. 384, 104 S.E. 763; Stocks v. Stocks, 179 N.C. 285, 102 S.E. 306.
The motion and answer thereto raised questions of fact. It was for the court to hear the evidence, find the facts and render judgment. City of Monroe v. Niven, supra; Cleve v. Adams, 222 N.C. 211, 22 S.E.2d 567; Dunn v. Wilson, 210 *241 N.C. 493, 187 S.E. 802; Rawleigh Banking & Trust Co. v. Nowell, 195 N.C. 449, 142 S.E. 584.
When the return shows legal service by an authorized officer, nothing else appearing, the law presumes service. The service is deemed established unless, upon motion in the cause, the legal presumption is rebutted by evidence upon which a finding of nonservice is properly based. Downing v. White, 211 N.C. 40, 188 S.E. 815; Smathers v. Sprouse, 144 N.C. 637, 57 S.E. 392. Upon hearing such motion, the burden of proof is upon the party who seeks to set aside the officer's return or the judgment based thereon to establish nonservice as a fact; and, notwithstanding positive evidence of nonservice, the officer's return is evidence upon which the court may base a finding that service was made as shown by the return. Downing v. White, supra; Long v. Town of Rockingham, 187 N.C. 199, 121 S.E. 461; G.S. § 1-592.
Service of process, and the return thereof, are serious matters; and the return of a sworn authorized officer should not "be lightly set aside." Burlingham v. Canady, 156 N.C. 177, 72 S.E. 324, 325; Mason v. Miles, 63 N.C. 564; Hunter v. Kirk, 11 N.C. 277.
Therefore, this Court has consistently held that an officer's return or a judgment based thereon may not be set aside unless the evidence consists of more than a single contradictory affidavit (the contradictory testimony of one witness) and is clear and unequivocal. Dunn v. Wilson, supra; Penley v. Rader, 208 N.C. 702, 182 S.E. 337; Hooker v. Forbes, 202 N.C. 364, 162 S.E. 903; Jordan v. McKenzie, 199 N.C. 750, 155 S.E. 868; Glass v. Moore, 195 N.C. 871, 142 S.E. 585; Rawleigh Banking & Trust Co. v. Nowell, supra; Lake Drainage Commissioners v. Spencer, 174 N.C. 36, 93 S.E. 435; Caviness v. Hunt, supra.
There are two assignments of error. Assignment of error No. 1 is as follows: "That the Court erred in the third, fifth, sixth, eighth, ninth and tenth findings of fact in the Judgment, for that the evidence to support said findings of fact was not clear and unequivocal." Each finding of fact so challenged relates to a different subject. This assignment does not comply with Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 554; State v. Atkins, 242 N.C. 294, 87 S.E.2d 507; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785. See also, Armstrong v. Howard, 244 N.C. 598, 94 S.E.2d 594.
Assignment of error No. 2 challenges the court's eleventh finding of fact, to wit, "that the defendant Lora E. Rice has shown by clear and unequivocal proof that she was not in the County of New Hanover on the 23rd day of December, 1949; that valid personal service was not had upon her nor an appearance made on her part; and that judgment taken against her on the 11th day of September, 1951, should be set aside and vacated."
The evidence offered by the feme defendant and the plaintiffs was contradictory. The credibility of the witnesses and the weight of the evidence were for determination by the court below in discharging its duty to find the facts. Assignment of error No. 2 raises the crucial question of law presented for decision, that is, whether the evidence offered in behalf of the feme defendant, if accepted by the court authorized to find the facts, was sufficient to meet the said legal requirements.
Lora E. Rice, the feme defendant, states clearly and unequivocally that the summons and complaint were not served on her on December 23, 1949, or at any other time; that between the late morning of December 21, 1949, and the late afternoon of December 24, 1949, she was not in New Hanover County; and that from December 21, 1949, until the afternoon of December *242 24, 1949, she was in the home of her brother-in-law, Dr. W. H. Braddy, in Burlington, North Carolina, who was treating her for a kidney ailment.
The affidavits of R. M. Rice, Jr., son of the feme defendant, and of Mattie Braddy, widow of Dr. W. H. Braddy, and the appointment book of Dr. Braddy, corroborate the feme defendant's statements that she was in the home of Dr. Braddy in Burlington, North Carolina, on said dates.
R. M. Rice, Sr., husband of Lora E. Rice and codefendant herein, states clearly and unequivocally that, while his wife was in Burlington, North Carolina, a deputy sheriff came to their home in New Hanover County; that the summons and complaint were served upon him; that the deputy sheriff left with him another copy of the summons and complaint with instructions to deliver this copy to his wife, Lora E. Rice, when she returned; and that (for reasons we need not consider in detail) he did not deliver said copy of the summons and complaint to the feme defendant or inform her of the incident.
It is noted that the delivery of a copy of the summons and of the complaint to R. M. Rice, Sr., with instructions to deliver to the feme defendant, was not valid service. First Nat. Bank of Charlotte v. Wilson, 80 N.C. 200; Jordan v. McKenzie, supra.
The evidence in behalf of the feme defendant consisted of substantially more than a single contradictory affidavit. Moreover, the evidence in behalf of the feme defendant is clear and unequivocal to the effect that the summons and complaint were not served on her. True, there was contradictory evidence, consisting principally of said return and of affidavits by the deputy sheriff that he personally served the summons and complaint on the feme defendant on December 23, 1949, and thereupon noted such service on the return. The credibility and weight of the evidence were for the court below. His findings of fact based thereon will not be disturbed.
There is no evidence, nor do plaintiffs contend, that the court, at the time said default judgment was rendered, had obtained jurisdiction otherwise than by personal service on December 23, 1949, as shown by said return. Her appearance in connection with said motion did not validate a judgment rendered when the court had no jurisdiction. City of Monroe v. Niven, supra; Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283.
The feme defendant's motion was to set aside said default judgment, not to dismiss the action; and, in accordance therewith, the judgment of the court below was that "the default judgment entered against the defendant Lora E. Rice on the 11th day of September, 1951, be, and the same is hereby set aside and vacated." See Harrell v. Welstead, supra.
While the court below found that the feme defendant has a meritorious defense to plaintiffs' cause of action, this was not essential or relevant to the allowance of her motion. City of Monroe v. Niven, supra. Hence, we do not discuss the evidence bearing on this subject.
No question is raised as to the original jurisdiction of the judge to pass on the motion to set aside a judgment by default final entered by the clerk pursuant to G.S. § 1-211. In this connection, see Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329; Moody v. Howell, 229 N.C. 198, 49 S.E.2d 233; Rich v. Norfolk Southern R. Co., 244 N.C. 175, 179, 92 S.E.2d 768.