Quattrone v. Rochester , 46 N.C. App. 799 ( 1980 )

MARTIN (Robert M.), Judge.

Defendant argues that the failure of plaintiff to file the affidavit of compliance required under G.S. 1-105(3) until after the hearing on the motion to dismiss which was more than three years after the accident and 114 days after service of the summons on the Commissioner of Motor Vehicles, renders the purported service invalid.

The case sub judice is controlled by two cases: Ridge v. Wright, 29 N.C. App. 609, 225 S.E. 2d 131 (1976) and Ridge v. Wright, 35 N.C. App. 643, 242 S.E. 2d 389, cert. denied, 295 N.C. 467, 246 S.E. 2d 10 (1978). Defendants in Ridge argued before this Court that their motion to dismiss for lack of service should be allowed since plaintiffs did not file affidavits of compliance as required by G.S. 1-105(3). Because the affidavits were filed pending the first appeal of that case, this Court ordered the affidavits stricken from the record and the affidavits were not considered by this Court on appeal. Having stricken the affidavits, we held that “[without the affidavits of compliance and other documents required by G.S. 1-105(3), clearly the service of process was defective. 29 N.C. App. at 611, 225 S.E. 2d at 132. In the ends of justice, however, we remanded the causes for another hearing on defendants’ motions to dismiss or in the alternative, to quash service of process.

At the 14 February 1977 hearing on remand, plaintiffs introduced two documents, purported affidavits of compliance as required by G.S. 1-105(3). The court again denied defendants’ motions and defendants appealed arguing that this court in the first Ridge case did not contemplate that on remand, the trial court would consider plaintiffs’ affidavits of compliance with G.S. 1-105(3). Rejecting that argument we concluded “that the cause was remanded for the very purpose of allowing the trial court to review the motions in light of plaintiffs’ affidavits.” 35 N.C. App. at 646, 242 S.E. 2d at 391. Hence, we held that service of process on defendants was sufficient when plaintiffs’ affidavits of compliance were filed on 6 January 1976, some two years and five months and one year and five months after the summonses were served on the Commissioner of Motor Vehicles.

Although not spelled out in the Ridge cases, the decisions are grounded in the language of G.S. 1-105 which states in pertinent part:

Service of such process shall be made in the following manner:

(1) By leaving a copy thereof, with a fee of three dollars ($3.00), in the hands of the Commissioner of Motor Vehicles, or in his office. Such service, upon compliance with the other provisions of this section, shall be sufficient service on defendant. (Emphasis added.)

(2) Notice of such service of process and copy thereof must be forthwith sent by registered mail by plaintiff or the Commissioner of Motor Vehicles to the defendant, and the entries on the defendant’s return receipt shall be sufficient evidence of the date on which notice of service upon the Commissioner of Motor Vehicles and copy of process were delivered to the defendant, on which date service on defendant shall he deemed completed. (Emphasis added.)

(3) The defendant’s return receipt . . . together with the plaintiff’s affidavit of compliance with the provisions of this section, must be appended to the summons or other process and filed with said summons, complaint and other papers in the cause.

In applying the language of the statute and the Ridge cases to the case sub judice, service on the Commissioner of Motor Vehicles was complete when he was served by the Sheriff of Wake County on 21 May 1979. Service on defendant was deemed completed on 30 May 1979, the entry on defendant’s return receipt evidencing the date on which notice of service upon the Commissioner and a copy of process were delivered to defendant. The filing of defendant’s return receipt and the affidavit of compliance as required by G.S. 1-105(3), governing the filing of proof of service, then rendered the service pursuant to subsection (1) sufficient service on the nonresident defendant. The filing of the affidavit does not affect the completeness of the service but rather merely perfects the record and furnishes proof of compliance with G.S. 1-105 for the guidance of the courts. Because service was completed within the time limits required by Rule 4(c), N.C. Rules Civ. Proc., for substituted personal service, defendant’s arguments that plaintiff’s action discontinued and was subsequently barred by the statute of limitations is without merit.

Affirmed.

Judges Webb and Hill concur.