The sole question presented by this appeal is whether service of process was had upon defendant.
In pertinent part G.S. 1A-1, Rule 4(j), provides that the manner of service to exercise personal jurisdiction over a natural person shall be “a. By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.”
In support of his contention that the service of process was inadequate defendant first argues that, on its face, the sheriffs return shows insufficient service inasmuсh as it states only that summons was left with “Mrs. C. Ray (mother) who is a person of suitable age and discretion and who resides in the defendant’s dwelling house or usual place of аbode.” Defendant asserts that this return is inadequate because: (1) Rule 4(j) requires that the summons and complaint be delivered to a person of suitable age and disсertion at a time when that person is physically present at the defendant’s dwelling house or usual place of abode. (2) The instant return of service indicated оnly that Mrs. Ray resided in defendant’s dwelling house; nowhere did it indicate that the place where the summons was left was defendant’s usual place of abode.
“[W]here a statute provides for service of summons or notices in the progress of a cause by certain persons or by designated methods, the specified requiremеnts must be complied with or there is no valid service.”
S. Lowman v. Ballard & Co.,
The better practice, then, would be for the sheriff to state explicitly in his return of service that the place where the summons was left was the dwelling house or usual place of abode of both the named defendant and “the person of suitable age аnd discretion” to whom he delivered the summons. However, we think the return of service in this case substantially complied with the requirements of Rule 4. It is stated therein that summons was lеft with defendant’s mother at Route 3, Box 187 and that she “is a person of suitable age and discretion . . . who resides in the defendant’s dwelling house or usual place of abоde.” In the summons, defendant’s address is given as Route 3, Box 187, Weaverville, North Carolina. On its face the return at most is ambiguous, but even so it does not reveal facts which would constitute false or incomplete service.
Defendant’s affidavit, submitted in support of his motion to dismiss the judgment for lack of valid service of process, states thаt Mrs. C. Ray is his mother and that she resides at Route 3, Box 187, Weaverville, North Carolina. Thus the ambiguity is resolved by defendant’s own affidavit. It is clear that, since service was had upon defendant’s mother at Route 3, Box 187, Weaverville, North Carolina, it was had at her dwelling. *71 The return further states Mrs. Ray resides in the defendant’s dwelling house. The conclusion is inesсapable; according to the return, service was had at defendant’s dwelling house. Thus, on its face, the return was proper.
Defendant’s second challenge to the validity of the purported service of process upon him is based on a single affidavit, his own. In it he avers that the sheriffs return of service erroneously stated that his dwelling house or usual place of abode was located' at Route 3, Box 187, Weaverville, North Carolina; that this address was not then, nor had it been for many years, his dwelling or usual place of abode.
If, in fact, the summons and complaint were not served upon defendant as prescribed by G.S. 1A-1, Rule 4(j)(l)(a), the default judgment of 1 March 1973 and the judgment of 27 September 1973 assessing damages against him are void and must be set aside.
North State Finance Co. v. Leonard,
The sheriffs return imports truth, and it “cannot be overthrown or shown to be false by the affidavit, merely, of the person upon whom the service is alleged to have been made. It has often been held that the return of a ministerial officer, as to what he has done out of court, is
prima facie
true, and cannot be contradicted by a single affidavit [or witness]. ... It would be oath against oath, and we could not well say with whom was the truth.”
Burlingham v. Canady,
The foregoing rule evolved to avoid the spectacle of such a confrontation between a party to an action аnd a public officer
*72
sworn to perform the' duties of his office according to law.
See North State Finance Co. v. Leonard,
The rule that an officer’s return of service may not be set aside upon thе contradictory testimony of one witness does not place an undue burden on a person who in truth has not been legally served. In our view, it would be a rare oсcasion when a party who had not been served in accordance with the legal requirements would be unable to corroborate his testimony. In this case, for example, if defendant had lived, worked, and voted in Tennessee since February 1963 surely his neighbors, employer, and the registrar of voters would have been’ among those available to corroborate his allegation that he was a resident of that state. Under those circumstances, his mother would undoubtedly have given her affidavit that on 16 May 1973 defendant was not living with her at Box 187 on Route 3, Weaverville, N.C. Defendant, however, produced no such corroboration. The single affidavit contrаdicting the sheriff’s return was his own. His motion therefore was properly denied.
Finally, defendant contends that the rule stated in Harrington v. Rice, supra, and the cases cited therein is outmoded and contrary to the practice in the fеderal courts, whose Fed. R. Civ. P. Rule 4(d)(1) governing service of process on an individual is substantially equivalent to our G.S. 1A-1, Rule 4(j) (l)a. Our examination of federal cases belies this contention.
Although our perusal of pertinent federal decisions has not disclosed an explicit requirement of a minimum of two affidavits to impeach a sheriffs return of service, it appears that federal law generally is in accordance with, the familiar rule that “the officer’s return upon the summons imports verity” and the presumption “can be overcome only by strong and convincing evidence.”
Hicklin v. Edwards,
Defendant in this case has given us no reason to abandon the rule stated in Harrington v. Rice, supra, and similar cases, and we adhere to it. As an English Court said with reference to another dоctrine, it “is grown revered by age, and it is not now to be broken in upon.” Jee v. Audley, 1 Cox 324, 325, 29 Eng. Rep. 1186, 1187 (1787).
Accordingly, the decision of the Court of Appeals is reversed. The case will be remanded to the District Court of Buncombe County with directions that the default judgment from which defendant appealed be reinstated.
Reversed.