Dowd v. Johnson, 235 N.C. App. 6 (2014)

to vacate default judgment

• Due diligence requires an attempt to serve Defendant at learned of “current address.”
• Service of process by publication is void if due diligence did not occur first.
• A Defendant’s general appearance in a matter after the judgment is entered is not a waiver of the defense of insufficient service of process. There was no personal jurisdiction over Defendant for the default judgment to issue.
• Facts: Default judgment was entered against Defendant who was served by publication. Prior to learning of Defendant’s “current address,” the plaintiff unsuccessfully attempted to serve Defendant at his former address. Plaintiff’s attorney was notified by Defendant’s attorney of the Defendant’s “current address,” which was included on the new civil summons that issued. The record does not show service was attempted at that current address; instead, Defendant was served by publication.  Defendant filed a motion to set aside default judgment, which was denied.