February 26, 1992
Subject:
Magistrate’s Court; Service by "Posting"; Summary Ejectment, N.C.G.S. § 42-29; Jurisdiction to Enter Money Judgment.
Requested by: Honorable Thomas N. Hix Chief District Court Judge 29th Judicial District
Question:
In a summary ejectment proceeding where the tenant does not make an appearance, may the magistrate enter a money judgment for rents and other damages in addition to an order for possession where service of process was effected by first class mail and posting on the premises pursuant to G.S. § 42-29?
Conclusion:
No.
The general requirements for service of process in civil proceedings are found in General Statutes § 1A-1, Rule 4. Rule 4 requires personal service of process whenever practical, but allows for substituted service (e.g. service of process by publication) after efforts at personal service of process fail.
The General Assembly created an exception to G.S. § 1A-1, Rule 4 in small claims actions for summary ejectment. G.S. § 7A-217(4) states that, in summary ejectment cases only, service of process may be effected through a procedure set forth in G.S. § 42-29. That procedure, often referred to as "service by posting," permits the officer receiving the summons to mail it, along with the summary ejectment complaint, to the defendant at his last known address and then attempt to notify the defendant of the pendency of the action by means of a telephone call. If the telephone call is not possible or successful, the officer must make at least one attempt to visit the premises at an appropriate hour and deliver the summons and complaint personally to the defendant or a person of suitable age and discretion residing therein. In the event that personal delivery of the summons and complaint cannot be made, the officer may affix copies to some conspicuous part of the premises.
The General Assembly had to address several concerns when it adopted this procedure in 1983. The United States Supreme Court had just held in Greene v. Lindsey, 456 U.S. 444 (1982), that North Carolina’s practice of merely posting the summons and summary ejectment complaint on the door of the premises when the tenant could not be found was not reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and was therefore violative of the Fourteenth Amendment to the U.S. Constitution. Requiring adherence to regular service of process rules, however, would unduly delay summary ejectment proceedings, which are designed to proceed at an accelerated pace so that landlords might recover their rental properties quickly from defaulting tenants (Note: G.S. § 42-28 requires that summary ejectment hearings take place within ten days). Physically delivering the summons and complaint to the tenant within such a short period of time can be difficult, often because the tenant, unbeknownst to the landlord or the sheriff, has abandoned the premises.
G.S.§ 42-29 successfully addresses these concerns. The procedure it prescribes meets the requirements of Greene v. Lindsey because it is reasonably calculated to apprise parties who are truly interested in possession of the premises that the action has been commenced. A money damages claim, on the other hand, does not require an expedited hearing. A tenant who has abandoned the premises would still have an interest in defending such a claim. G.S. § 42-29 is not reasonably calculated, under all the circumstances, to apprise such a tenant of the pendency of the action for money damages.
Because G.S. § 7A-217(4) states that the procedure found in G.S. § 42-29 can be used in summary ejectment cases only, and because summary ejectment is in the nature of an in rem proceeding, an in personam money damages claim cannot be heard and a money judgment cannot be entered in an action where service of process is effected through that alternative method. The requirements for actual service of process found elsewhere in G.S. § 7A-213 and in G.S. § 1A-1, Rule 4 would still apply to the claim for rents and other money damages.
LACY H. THORNBURG Attorney General
David N. Kirkman Assistant Attorney General