22 N.C. App. 686 | N.C. Ct. App. | 1974
The defendant contends that G.S. 1-105, which provides for service of process on non-resident drivers of motor vehicles, is exclusive; and an attempt to serve him by mail violates the fourteenth amendment to the Constitution of the United States by depriving him of his property without due process and denies him equal protection of law. The validity of service pursuant to
Rule 4 (j) (9) of the North Carolina Rules of Civil Procedure provides an alternative method for service on parties that cannot otherwise be served, or that are not inhabitants of, or found within this State. It requires an affidavit to be filed by the attorney for the plaintiff setting forth why such service is necessary. The summons and complaint then must be served by registered mail with return receipt requested. Rule 4(j) (9) is not restricted to any one type of civil case. We do not agree with the defendant’s contention that it is not available for accidents involving motor vehicles.
We further note that the General Assembly repealed G.S. 1-105 by the 1967 Session Laws effective 1 January 1970. The 1971 General Assembly reinstated 1-105 effective 1 July 1971. For a period of one and one-half years Rule 4(j) (9) was the only service available for serving out of state motorists. If it was available then, we do not think it was made ineffective by the re-enactment of G.S. 1-105. When G.S. 1-105 was re-enacted, if the General Assembly had wanted to make it exclusive, it could have easily done so. In the absence of such legislative restriction, we hold that either method of service is available to serve a nonresident operator of a motor vehicle under appropriate circumstances.
No error.