Board of Com'rs of Roxboro v. Bumpass
63 S.E.2d 144
N.C.
1951
Check Treatment
BaeNHill, J.

Tbe feme movant is tbe owner of tbe property described in tbe complaint, subject to tbe life estate of Maggie Bumpass. Sbe is therefore a necessary party to this action. Wilmington v. Merrick, 231 N.C. 297; Eason v. Spence, 232 N.C. 579.

Tbe plaintiff sought to bring her in and subject her to tbe jurisdiction of tbe court by service of summons by publication. Whether 'the proceeding in this respect was sufficient for that purpose is the primary question.

Tbe service of process by publication is in derogation of tbe common law and tbe statute making provision therefor must be strictly construed. Tbe court must see that every prerequisite prescribed exists in tbe particular case before it grants the order of publication. Spiers v. Halstead, 71 N.C. 209; Windley v. Bradway, 77 N.C. 333; Wheeler v. Cobb, 75 N.C. 21; Faulk v. Smith, 84 N.C. 501; Bacon v. Johnson, 110 N.C. 114; Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E. 2d 901.

Tbe statute prescribes, with particularity and caution, tbe cases and causes in which, and tbe conditions upon which, such service will be authorized.. G.S. 1-98 and 105-391. It expressly designates tbe facts which must be made to appear to tbe court by affidavit as tbe basis for an order of service by publication. Tbe affidavit required to support an order for service of summons by publication is jurisdictional. Tbe omission therefrom of any of tbe essential averments on which an order for substitute service is predicated is fatal. Groce v. Groce, 214 N.C. 398, 199 S.E. 388; Rodriguez v. Rodriguez, supra; Simmons v. Simmons, 228 N.C. 233, 45 S.E. 2d 124.

“Everything necessary to dispense with personal service of tbe summons must appear by affidavit.” Davis v. Davis, 179 N.C. 185, 102 S.E. 270.

Tbe affidavit must make it appear that a cause of action exists in favor of tbe plaintiff against tbe defendant upon whom such service is sought, G.S. 1-98, and the cause of action must be stated with such clearness and comprehension as may enable tbe court to determine its sufficiency. Spiers v. Halstead, supra; Bacon v. Johnson, supra; Martin v. Martin, 205 N.C. 157, 170 S.E. 651. While the statement of the cause *194 of action as set out in tbe affidavit may be abbreviated, it must be sufficient to disclose tbe nature of tbe action.

Here tbe affidavit contains no reference to a cause of action. It merely makes it appear that Elsie Bumpass cannot, after a diligent search, be found in tbis State. It is insufficient to support tbe order of publication.

But tbe plaintiff stressfully contends that any defect in tbe affidavit is cured by tbe complaint wbicb was on file wben tbe affidavit was presented. It relies on tbe decisions in Davis v. Davis, supra; Bank v. Tolbert, 192 N.C. 126, 133 S.E. 558; and Martin v. Martin, supra. But these decisions can afford plaintiff little comfort, for they are clearly distinguishable.

In tbe Davis case a verified complaint and tbe affidavit were filed contemporaneously. Both were presented to tbe clerk with tbe proposed order for service by publication.

Tbe court in tbe Tolbert case concluded that tbe affidavit was sufficient. It commented that, in that case, tbe jurisdiction of the court, as to tbe subject of tbe action, need not be shown by affidavit, and that, in any event, jurisdiction of tbe subject matter appears from tbe facts alleged in tbe complaint. Tbe complaint was not used to supplement the affidavit.

In tbe Martin case tbe plaintiff requested tbe court to consider tbe complaint as an affidavit upon wbicb an order for service by publication should be issued. Tbe court in its opinion stated tbe rule followed in tbe Davis case as follows: . . if a verified complaint containing tbe necessary allegations be filed simultaneously with tbe affidavit, tbe complaint may be treated as an amendment or complement wbicb cures tbe defect.” Tbis rule applies wben it appears that tbe clerk considered tbe complaint as tbe basis, in whole or in part, of bis order.

But in tbis case tbe complaint and affidavit were not filed simultaneously. At tbe time tbe affidavit was presented, tbe complaint bad been on file more than fifteen days. Tbe clerk was not required to search bis files to ascertain whether there was some pleading of record which might supplement tbe defective affidavit. It affirmatively appears that be did not do so. He expressly cites tbe affidavit as tbe basis of bis findings.

Furthermore, even if we resort to tbe complaint, it is at least doubtful whether that states tbe cause of action tbe plaintiff now asserts it relied upon. While it appears in tbe caption as one of tbe defendants, tbe name of Elsie Bumpass is not contained in tbe body of tbe complaint. Tbe one allegation of her interest in tbe controversy — if it may be so considered — is ambiguous and misleading.

Tbe plaintiff likewise relies on G-.S. 105-393, wbicb provides that no proceeding to contest tbe title conveyed in a tax foreclosure action, or *195 motion to reopen or set aside the judgment therein, shall be entertained after the expiration of one year. But this statute will not avail here.

Notice and an opportunity to be heard are prerequisites of jurisdiction, Wilmington v. Merrick, supra; Eason v. Spence, supra, and jurisdiction is a prerequisite of a valid judgment. McRary v. McRary, 228 N.C. 714, 47 S.E. 2d 27. The Legislature is without authority to dispense with these requirements of due process, and lapse of time cannot satisfy their demands. No statute of limitations, therefore, can bar the right of a litigant to assert that he is not bound by a judgment entered in a cause of which he had no legal notice.

The decree of confirmation of the sale, entered by the clerk in the original foreclosure proceeding, does not suffice to bar Elsie Bumpass Doggett, the movant, or to authorize the conveyance of her remainder interest in the property. Therefore, the judgment entered in the court below, in so far as it affects her interest in the property, must be Reversed.