finding a judgment void because the North Carolina Secretary of State mailed documents to the wrong address
How later courts described this case
- finding a judgment void because the North Carolina Secretary of State mailed documents to the wrong address
- using “c/o” to send mail to the second listed party, to be directed to the first listed party
- denial of Rule 60(b) motion upheld where the plaintiff served the Secretary of State because the defendant corporation failed to update its registered office address
- “Th[e test for relief under Rule 60(b)(6)] is two-pronged, and relief should be forthcoming only where both requisites exist.”
Written by the judges who cited it.
The opinion
Judge PHILLIPS
concurring in part and dissenting in part.
I concur in affirming the default judgment entered against the defendant Bailey’s Tunnel Road Cafeteria, Inc., but dissent from vacating the default judgment entered against the defendant Hallmark Enterprises, Inc., as I am of the opinion that Hallmark was served with process in this case when its statutory process agent, the Secretary of State, was duly served. G.S. 55-15(b) provides:
then the Secretary of State shall he an agent of such corporation upon whom any such process, notice, or demand may be served. Service on the Secretary of State of any such process . . . shall be made by delivering to and leaving with him, or with any clerk having charge of the corporation department of his office, duplicate copies of such process .... In the event any such process ... is served on the Secretary of State, he shall immediately cause one of the copies thereof to be forwarded by registered or certified mail, addressed to the corporation at its registered office. Any such corporation so served shall be in court for all purposes from and after the date of such service on the Secretary of State. (Emphasis added.)
Though the explicit statement that service “shall be deemed complete when the Secretary of State is so served” is not contained *27 therein, as it is in G.S. 55446(a) with respect to serving foreign corporations, that is what G.S. 5545(b) plainly provides, it seems to me. The only purpose of a corporation having a process agent is so that service on the principal can be accomplished by serving the agent instead of the principal. Under G.S. 5515(a) service upon a corporation’s registered agent is service upon the corporation; and the foregoing provisions of G.S. 5545(b) are plainly designed to achieve the same result when a corporation’s statutory process agent is served in the same manner, namely by delivering to the agent “duplicate copies of such process.” In this instance Hallmark’s statutory process agent was so served. In my opinion the mailing by the Secretary of State, instead of being a part of the service of process, is but an administrative act by the duly served agent calculated to notify the principal that service has been accomplished; and the Secretary of State’s failure to again send the mailing to the dead address of Hallmark’s former agent was immaterial, since he had learned from the first mailing that Hallmark would not receive notice by it.