Fountain v. Patrick , 44 N.C. App. 584 ( 1980 )

261 S.E.2d 514 (1980) 44 N.C. App. 584

Donna Cleo FOUNTAIN
v.
Hollis T. PATRICK and Nathaniel West.

No. 794SC65.

Court of Appeals of North Carolina.

January 15, 1980.

Joseph C. Olschner, Jacksonville, for plaintiff appellant.

Hamilton, Bailey & Coyne, by H. Buckmaster Coyne, Jr., Morehead City, for defendant appellees.

ERWIN, Judge.

The setting aside of default judgments is governed by the provisions of G.S. 1A-1, Rule 60(b). G.S. 1A-1, Rule 55(d). Rule 60(b), relied upon by defendants in their motion to set aside the judgment, provides:

On motion and upon terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

. . . . .

(6) Any other reason justifying relief from the operation of the judgment.

"If a movant is uncertain whether to proceed under clause (1) or (6) of Rule 60(b) he need not specify if his `motion is timely and the reason justifies relief.' 7 Moore's Federal Practice § 60.27(2) (2d ed. 1970). The broad language of clause (6) `gives the courts ample power to vacate judgments whenever such action is appropriate to accomplish justice.' 3 Barron and Holtzoff, Federal Practice and Procedure (Wright Ed.) § 1329.", and movant has shown a meritorious cause of action or defense and that "he himself has acted with proper diligence throughout." Brady v. Town of Chapel Hill, 277 N.C. 720, 723, 724, 178 S.E.2d 446, 448 (1971); Sides v. Reid, 35 N.C.App. 235, 241 S.E.2d 110 (1978). Here the motion was timely, and movant specified merely Rule 60(b). Findings of fact made by the trial court upon a motion to set aside a judgment by default are binding on appeal if supported by any competent evidence. Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507 (1954); City of Durham v. Keen, 40 N.C.App. 652, 253 S.E.2d 585, cert. denied, 297 N.C. 608, 257 S.E.2d 217 (1979); Dishman v. Dishman, 37 N.C.App. 543, 246 S.E.2d 819 (1978); Norton v. Sawyer, 30 N.C.App. 420, 227 S.E.2d 148, cert. denied, 291 N.C. 176, 229 S.E.2d 689 (1976); Kirby v. Asheville Contracting Co., 11 N.C.App. 128, 180 S.E.2d 407, cert. denied, 278 N.C. 701, 181 S.E.2d 602 (1971). Where such findings of fact support the conclusions of law and the conclusions of law support the judgment, the judgment must be affirmed. Kleinfeldt v. Shoney's, Inc., 257 N.C. 791, 127 S.E.2d 573 (1962).

Plaintiff assigns error to various findings by the trial court concerning the sufficiency of service of process on defendants. Specifically, we concern ourselves with plaintiff's contention that the trial judge committed error in finding that plaintiff had not exercised due diligence in ascertaining addresses for defendants, thereby deeming plaintiff's use of service of process by publication under Rule 4(j)(9)c inappropriate. Upon a careful review of the materials presented, we find the record supportive of the trial court's findings.

A defect in service of process by publication is jurisdictional, rendering any judgment or order obtained thereby void. Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138, rehearing denied, 285 N.C. 597 (1974). A judgment by default granted without proper service of process upon the defendant is void where defendant does not otherwise waive service of process. Kleinfeldt v. Shoney's, Inc., supra. Service of process by publication is in derogation of the common law. Therefore, statutes authorizing service of process by publication are strictly construed, both as grants of authority and in determining whether service has been made in conformity with the statute. Sink v. Easter, supra; Harrison v. Hanvey, 265 N.C. 243, 143 S.E.2d 593 (1965); Richmond Cedar Works v. Farmers Manufacturing Co., 41 N.C.App. 233, 254 S.E.2d 673, cert. denied, 298 N.C. 202 (1979).

G.S. 1A-1, Rule 4(j)(9)c, provides for service by publication "whenever the party's address, whereabouts, dwelling house or usual place of abode is unknown and cannot with due diligence be ascertained. . . ." In the present case, the trial court ruled the plaintiff's service by publication defective, in that "the addresses of the defendants were available to the plaintiff and that the plaintiff did not use diligence to ascertain said addresses." On hearing, evidence presented indicated that plaintiff had available to him certain insurance accident reports which contained addresses for each defendant. There is no evidence that an attempt was made to mail the summonses to the addresses available. Further, there was evidence tending to show that plaintiff's counsel, a former counsel for defendants' insurance carrier, was aware of and familiar with the carrier's operating procedures concerning lawsuits, and that the carrier had address information on each of its insureds. In fact, by the time this action was commenced, plaintiff had already negotiated with defendants' insurance carrier acting on behalf of defendants. Evidence tended to show that plaintiff could have easily notified the carrier of her potential civil action and solicited aid in ascertaining defendants' addresses for purposes of service of process. Finally, it appears that plaintiff had available to her the option of requesting defendants' insurance carrier to answer the complaint voluntarily and defend the claim where the defendants could not be located, although there was no duty to do so by either party. There was no attempt to pursue any of these options. Due diligence dictates that plaintiff use all resources reasonably available to her in attempting to locate defendants. Where the information required for proper service of process is within plaintiff's knowledge or, with due diligence, can be ascertained, service of process by publication is not proper. G.S. 1A-1, Rule 4(j)(9)c; Thomas v. Thomas, 43 N.C.App. 638, 260 S.E.2d 163 (1979).

Plaintiff, in opposition to defendants' motion to set aside the judgment, filed certain affidavits to the effect that all reasonable means had been taken in an attempt to ascertain defendants' addresses. The trial judge considered all the materials and ruled in defendants' favor. There was presented some evidence supporting the trial court's decision to set aside the judgment, and that ruling, therefore, must remain undisturbed.

In so holding, we affirm the trial court's determination that "the attempted service of process upon the defendants by publication was defective and void and that there has been as insufficiency of process. . . ." The court had no jurisdiction over the person of the defendants, and plaintiff's action was properly dismissed. See Sink v. Easter, supra; Kleinfelds v. Shoney's, Inc., supra.

Since we find the trial court's finding of a lack of due diligence under Rule 4(j)(9)c dispositive in our review of defendants Rule 60(b) and Rule 12(b)(5) motions, we do not discuss plaintiff's assignments of error concerning the summonses, publication notice, and affidavit of publication.

Affirmed.

PARKER and ROBERT M. MARTIN, JJ., concur.