35 N.C. App. 752 | N.C. Ct. App. | 1978
The defendant contends that the trial court erred in denying its motion pursuant to Rule 60(b) for relief from the default judgment. The defendant argues that the trial court never obtained jurisdiction in this action because service of process was never had on the corporate defendant in the manner provided by the North Carolina Rules of Civil Procedure.
General Statute 1A-1, Rule 4(j)(6) provides the following means for serving process on a corporation:
Domestic or Foreign Corporation. — Upon a domestic or foreign corporation:
a. By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office; or
b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service or [of] process or by serving process upon such agent or the party in a manner specified by any statute, [emphasis added.]
In the present case, process was served on the corporate defendant by leaving copies thereof with the wife of the registered agent at his residence. Defendant cites cases construing the federal counterpart of our Rule 4(j)(6) as authority for its position that this manner of service was inadequate. See Bard v. Bemidji Bottle Gas Co., 23 F.R.D. 299 (1958); In Re Eizen Furs, Inc., 10 F.R.D. 137 (1950); Tyson v. Publishers Co., Inc., 223 F. Supp. 114 (1963). Although our own statute is similar to the pertinent federal statute, Federal Rules of Civil Procedure 4(d) (3) and (7), there is a difference in wording which dictates a different construction on the facts of this case. While our statute permits service on a corporation “by serving process upon ... [an agent authorized by appointment or by law] in a manner specified by any statute,” the federal rule requires service on the corporation
The trial court found and the record establishes that at the time this lawsuit was instituted Harvey V. Houser was the registered agent of the defendant corporation appointed pursuant to G.S. 5543(b). Thus as long as process was served on Houser “in a manner specified by any statute” it was effective to confer jurisdiction on the Superior Court. The return of service discloses that process was served on Houser by leaving copies thereof at his house with his wife, “who is a person of suitable age and discretion” in compliance with Rule 4(j)(l) which provides the manner of serving process upon a natural person. In our opinion by the interplay of the cited statutes the corporate defendant was properly served with process.
The order appealed from is affirmed.
Affirmed.
