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Gibby v. Lindsey3/19/2002
N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)a; and (II) the default judgment should be set aside pursuant to N.C. Gen. Stat. § 1A-1, Rules 60(b)(1) and (6).
I.
A defendant may be relieved from a final judgment, including a default judgment, if the judgment is void. N.C.G.S. § 1A-1, Rule 60(b)(4) (1999). "A defect in service of process is jurisdictional rendering any judgment or order obtained thereby void." Thomas v. Thomas, 43 N.C. App. 638, 645, 260 S.E.2d 163, 168 (1979) (citing Sink v. Easter, 284 N.C. 555, 561, 202 S.E.2d 138, 143 (1974)). Service of process upon a natural person is perfected " y 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." N.C.G.S. § 1A-1, Rule 4(j)(1)a (1999). Defendant contends the default judgment against him is void because service of process was defective in that Craig's residence was no longer his dwelling house or usual place of abode when Plaintiffs served the summons and complaint by leaving it with Craig on 26 August 1999. We disagree.
In this case, the officer's return of the summons indicates legal service under Rule 4(j)(1)a, thus giving rise to a presumption of valid service of process. Guthrie v. Ray, 293 N.C. 67, 71, 235 S.E.2d 146, 149 (1977). The burden is on Defendant to rebut this presumption by clear and unequivocal evidence that consists of more than a single contradictory affidavit or the contradictory testimony of one witness. Id.
Defendant left without telling Craig where he was going and had only taken along some of his clothes, leaving his remaining possessions behind. Until Defendant obtained a South Carolina driver's license on 24 January 2000, Defendant used his North Carolina driver's license listing Craig's address as Defendant's residence. Defendant did not have his mail forwarded to South Carolina, nor did he have a bank account or any bills until November 1999 when he bought a truck. Even more significantly, Defendant considered Craig's residence his "home" and admitted he had no intentions of staying with his relatives in South Carolina for any length of time. In addition, Craig testified that even though she did not know where her son was at the time she accepted service of process for him at her residence, her home was Defendant's primary residence. As such, the evidence fails to establish clearly and unequivocally that Defendant had assumed a new dwelling house or usual place of abode by 26 August 1999. See Guthrie, 293 N.C. at 71, 235 S.E.2d at 149. Because Defendant failed to meet his burden under Guthrie, the trial court did not err in denying his motion to set aside the default judgment.
II.
Defendant further argues the trial court's 15 September 2000 order completely failed to address Defendant's motion to set aside the default judgment under N.C. Gen. Stat. § 1A-1, Rule 60(b)(1) and (6). Rule 60(b) permits a trial court to relieve a party from a final judgment, order, or proceeding based on "mistake, inadvertence, surprise, or excusable neglect," N.C.G.S. § 1A-1, Rule 60(b)(1) (1999), or " ny other reason justifying relief from the operation of the judgment," N.C.G.S. § 1A-1, Rule 60(b)(6) (1999). In order for a defendant to succeed in setting aside a default judgment under Rule 60(b)(6), he must show: (1) extraordinary circumstances exist, (2) justice demands the setting aside of the judgment, and (3) the defendant has a meritorious defense. State ex rel. Envtl. Mgmt. Comm. v. House of Raeford Farms, 101 N.C. App. 433, 448, 400 S.E.2d 107, 117, disc. review denied, 328 N.C. 576, 403 S.E.2d 521 (1991).
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