Van Buren v. Glasco
Van Buren v. Glasco
Opinion
The right of immediate appeal in this case is given by G.S. 1-277 (b). Grounds for personal jurisdiction exist as provided in G.S. 1-75.4, and the determination of this appeal de *5 pends upon whether service of process was made in the manner required by G.S. 1A-1, Rule 4(j) (l)a. In pertinent part that Rule provides that service upon a natural person not under disability may be made
“ [b] 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.”
Appellant contends, first, that the house at which the deputy sheriff left the copies of the summons and complaint was not his “dwelling house or usual place of abode,” and, second, that his fifteen-year-old son was not a “person of suitable age and discretion.” We do not agree with either contention.
“When the return shows legal service by an authorized officer, nothing else appearing, the law presumes service. The service is deemed established unless, upon motion in the cause, the legal presumption is rebutted by evidence upon which a finding of nonservice is properly based. . . . Upon hearing such motion, the burden of proof is upon the party who seeks to set aside the officer’s return *7 or the judgment based thereon to establish nonservice as a fact; and, notwithstanding positive evidence of nonservice, the officer’s return is evidence upon which the court may base a finding that service was made as shown by the return.” Harrington v. Rice, 245 N.C. 640, 642, 97 S.E. 2d 239, 241 (1957).
In the present case the only evidence presented by appellant to show that his son was not a “person of suitable age and discretion” was his son’s birth certificate which showed that he was born on 18 November 1957, thus making him fifteen years and nine months old at the time the papers were delivered to him by the deputy sheriff on 21 August 1973. No evidence was presented and no contention is made that appellant’s son lacked the intelligence and discretion ordinarily possessed by a boy of his age. Appellant contends, however, that a fifteen-year-old boy is, as a matter of law, not a “person of suitable age and discretion” within Rule 4(j) (l)a. We do not agree. Similar contentions were made and rejected in Day v. United Securities Corporation, 272 A. 2d 448 (D.C. Ct. App. 1970) ; Holmen v. Miller, 296 Minn. 99, 206 N.W. 2d 916 (1973) ; and Temple v. Norris, 53 Minn. 286, 55 N.W. 133 (1893). In Holmen v. Miller, supra, the Supreme Court of Minnesota was called upon to determine whether a thirteen-year-old daughter was a “person of suitable age and discretion” for purposes of substituted service of process upon her father. In holding the service valid in that case, the court said:
“It may well be that a 13-year-old, or for that matter a person of any age, is not a person of suitable age and discretion for the purpose of the rule. However, the burden is upon the defendant, after a proper motion to the court, to prove that fact. The sheriff’s certificate in this case contained the statement that Jean Miller, contestee’s daughter, was a person of suitable age and discretion. We have held that the sheriff’s certificate is prima facie evidence of the allegations it contains and that a defendant has the burden of proving otherwise.” 296 Minn. at 104, 206 N.W. 2d at 919-20.
The same rule applies in this State. Harrington v. Rice, supra. Appellant failed to carry the burden of showing that his son was not a person of suitable age and discretion for purposes of Rule 4(j) (1)a.
*8 The order appealed from is
Affirmed.
Reference
- Full Case Name
- Martin L. Van Buren v. Max Glasco and Carolina Interior Contractors, Inc.
- Cited By
- 14 cases
- Status
- Published