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The Problem with Service by Publication

July 1, 2014

It was a simple accident.  He was simply unable to stop in time in heavy, rush-hour traffic and rear-ended the vehicle in front of him.  After the accident was investigated and insurance information exchanged, he assumed the matter would be amicably resolved by his insurer.

Several months later, he received a call from an attorney retained by his insurer that the other party had filed suit and had made an entry of default against him.  Upon further discussion with the attorney, he learned that the other party was making a substantial claim for damages caused by the injuries he sustained in the accident.  He also learned that because he was in default, he could not present evidence on his own behalf, although there would be a hearing on damages.

How could this be?  He had received no actual notice and had not been personally served.  The attorney advised that the other party, through his attorney, had been unable to serve him personally based upon the address set forth in the incident report prepared by the investigating officer.  As a result, the other attorney had obtained a court order directing that he be served by publication.  He had not seen the publication in the local newspaper.  Moreover, it turned out that the investigating officer had failed to note the change of address on the back of his license and had mistakenly entered his old address.  Since he had moved, he was obviously not there when service was attempted.

Under South Carolina law, the above scenario is not necessarily far-fetched. A judge would have the discretion to overturn the entry of default.  But, as seen in the recent case of Caldwell v. Wiquist, 402 S.C. 565, 741 S.E.2d 583 (Ct. App. 2013), circuit judges are not always sympathetic.  These rulings are not to be disturbed absent a clear showing of abuse of discretion.  Id.  Fortunately, for the defendant in Caldwell v. Wiquist, the Court of Appeals overturned the default judgment based upon the lack of a factual basis for determining that the defendants could not, after due diligence, be found in the State.  There are instances, however, where the appellate courts have found that the supporting affidavits contained sufficient factual information to support service by publication.  See Montgomery v. Mullins, 325 S.C. 500, 480 S.E.2d 467 (Ct. App. 1997) (in the absence of fraud or collusion, the decision of the officer ordering service by publication is final); Wachovia Bank of S.C., NA v. Player, 341 S.C. 424, 545 S.E.2d 129 (2000) (order granting service by publication will not be set aside absent proof of fraud or collusion).

Where there is a sufficient factual basis for this issuance of an order granting service by publication, the question then becomes whether service by publication will comply with due process requirements of adequate notice, particularly in light of the drastic decline in newspaper readership over the past few years.  The Pew Research Center reports that only 23% of the public read newspapers on a regular basis.  Service by publication assumes that those who read newspapers do so thoroughly, including reading the small print notices for litigation.  Although courts have recognized that service by publication is a notoriously unreliable method of actually informing interested parties of pending litigation, see, e.g., Floyd v. Gore, 251 Ga. App. 803, 555 S.E.2d 170 (2001), they continue to rely upon statutorily permitted service by publication when reasonable efforts have been undertaken to otherwise serve and notify interested parties of the litigation.


Assuming service by publication passes constitutional muster, there is a greater problem of what notice is to be given in South Carolina.  Until 1985, when the South Carolina Rules of Civil Procedure were adopted, the commencement of a legal action was made when a summons was properly served upon a defendant.  (See §15-9-10, S.C. Code (1976) repealed by 1985 Act 100 §2.)  Moreover, section 15-13-230 provided that a complaint need not be served with the summons.  Instead, the summons would direct a defendant to obtain a copy of the complaint from the Clerk of Court in the County where the action was pending.

With enactment of the Rules of Civil Procedure, this changed.  Pursuant to Rule 4(d), the summons and complaint must be served together.  Otherwise, the civil action is not commenced.  See Rule 3, SCRCP.

A problem arises, however, with service by publication.  The substituted process is controlled by section 15-9-740, which provides for service of the summons only and not the summons and complaint.  Section 15-9-740 was first enacted in 1870 and appears to be a remnant of those statutes which based commencement of an action upon service of the summons only.  In addition to concerns about whether a defendant would, as a practical matter, see this notice in a newspaper, the notice given does not include any indication of why he is being sued—only that he is being sued.  This approach was rejected with the passage of the Rules of Civil Procedure, which mandated that the summons and complaint be served together.

The question therefore arises:  Does South Carolina law now require service of both the summons and complaint in all circumstances, or does it require the service of both the summons and complaint in all circumstances, except where the service is by publication, which requires only the service of a summons?  The first scenario leads to the conclusion that the practice as carried out under section 15-9-740 is inappropriate.  This also raises the question of whether prior cases in which service by publication have led to judgments which are, in fact, void for purposes of Rule 60 (Relief from a Judgment or Order).[1]  Under the second scenario, the disparate treatment of those served by publication and those served by other means may raise concerns about equal protection.  Fortunately, based upon the reasoning set forth below, this constitutional is one that need not be resolved.[2]

Statutes which deal with the same subject matter are considered to be in pari materia and must be construed together, if possible, to produce a single harmonious result.  Denman v. City of Columbia, 387 S.C. 131, 691 S.E.2d 465 (2010).  Initially, it must be determined if the South Carolina Rules of Civil Procedure are to be treated as the equivalent of a statute.  Because Section 4A of the South Carolina Constitution requires rules promulgated by the South Carolina Supreme Court to be submitted to the Judiciary Committee of each house of the General Assembly for consideration and possible rejection by concurrent resolution, it is submitted that the Rules of Civil Procedure are the equivalent of a statute.  Assuming Rule 4(d) of the South Carolina Rules of Civil Procedure to be the equivalent of a statute, strict compliance with both that rule and section 15-9-740 would be required since service by publication is in derogation of the common law, therefore requiring strict compliance with the authorizing statute or rule.  See, Wayne County, ex rel. Williams v. Whitley, 72 NC App. 155, 323 S.E.2d 458 (1984); see also, Caldwell v. Wiquist, 402 SC 565, 741 S.E.2d 583 (Ct. App. 2013) (to avoid resolving litigation by default, strict compliance with publication statutes is required).  Rule 4(d) (requiring that the summons and complaint be served together) and section 15-9-740 (directing that service by publication be accomplished by publication of the summons only) are, however, inherently contradictory and cannot be construed to render a single harmonious result.

When the Rules of Civil Procedure were promulgated by the Supreme Court and not rejected by the General Assembly, the latter also passed a bill which attempted to repeal those statutes previously enacted which were in conflict with the Rules of Civil Procedure.  See 1985 Act 100 (effective 7/1/85).  The legislature further provided that in the event of conflict between any provision of the South Carolina Rules of Civil Procedure and any other statutory provisions as to practice and procedure not otherwise repealed by the Act, the provisions of the rule would prevail.  Since procedure concerns the machinery for carrying on a legal action, including pleadings, process, evidence and practice, it appears clear that service by publication concerns a matter of procedure.  Based upon this Act, the dictates of Rule 4 would prevail over section 15-9-740.  Accordingly, the commencement of any action requires service of both a summons and complaint.

Since the service of a summons, which gives a court the power to render a judgment over a party within its jurisdiction, must be accomplished with service of the complaint, there is no personal jurisdiction over a party without the service of both summons and complaint together.  Without personal jurisdiction, any judgment rendered by a court is void.  Universal Benefits, Inc. v. McKinney, 349 S.C. 179, 561 S.E.2d 659 (Ct. App. 2002) (A judgment is void when a court lacks personal jurisdiction over a party).  Because a void judgment is a nullity, it may be attacked at any time within “reason” without a showing of excusable neglect or meritorious defense.  See Flanagan, James F., South Carolina Civil Procedure (2d Ed.).  Under Rule 60(b)(4), relief where a judgment is void is non-discretionary and a matter of right.  Richardson Construction Co. v. Meck Engineering & Construction Co., 274 S.C. 307, 262 S.E.2d 913 (l980).  As a result, if the above analysis proves true, any service by publication upon a defendant which is undertaken in conformance with section 15-9-740 may have been improper and cause the judgment rendered upon a default to be void and subject to relief pursuant to Rule 60(b)(4) of the South Carolina Rules of Civil Procedure.

If we return to the case of our friend who was found in default due to his failure to answer after service by publication, it is likely that a circuit judge would overturn the default due to the factual circumstances leading to the necessity of service by publication.  However, our courts have at times accepted conclusory statements in the affidavit filed in support of a motion for service by publication.  See Yarborough v. Collins, 293 S.C. 290, 360 S.E.2d 300 (1987).  Moreover, it is more likely than not that the inappropriate service by publication will not be caught before judgment by default is rendered, particularly given today’s newspaper readership.  Our friend was simply lucky in that regard.  However, even if the circumstances of the service by publication are not timely challenged, the above reasoning would indicate that the judgment could be challenged under Rule 60 and likely be voided as a nullity.

It would appear that service by publication, as allowed in South Carolina, has outlived its usefulness.  Certainly, requiring a plaintiff to publish both summons and complaint could prove to be very costly and probably ineffective.  Given the resources available today, our courts should, in all likelihood, require more stringent efforts to locate and serve a defendant be undertaken.  In fact, the Court of Appeals in Caldwell v. Wiquist, 402 S.C. 565, 741 S.E.2d 583 (Ct. App. 2013), has implied as much (affidavit which only indicated an inability to serve with a County was insufficient, since there was no factual basis to determine if the defendant could not, after due diligence, be found in the State).  By contrast, the Court, in Ingle v. Whitlock, 282 S.C. 391, 318 S.E.2d 367 (1984), found sufficient an affidavit which attempted service at two addresses, contact with the mail carrier, relatives, and neighbors.  Tools available through the internet should also make it less cumbersome to locate a party who has moved away after an event has occurred.  Another solution would be to have a central data base in the state which would be accessed for a fee by attorneys.  Service by publication should be resorted to only when there is no alternative after personal service through a process server has failed, location by internet tools, retention of an investigator, contact with neighbors, businesses or service providers such as postal carriers, insurers, or social media sites has proved ineffective.  Only under those circumstances when diligent efforts will not reveal the whereabouts of a defendant, should a substitute service, such as service of publication, be utilized.  In this way, more cases would be resolved on their merits rather than having matters resolved on technicalities. 

David Moore has more than three decades of  legal experience and believes that litigation is a "means of resolving problems." He knows that representing a client involves more than just winning -- it involves guiding and educating a client through a process that is often disconcerting and intimidating. But, with through negotiation, mediation and litigation, problems can be resolved and fears can be assuaged.

South Carolina Lawyer, a publication of the SC Bar Association, published this article in its March 2015 edition.

[1] A defect in service of process by publication is jurisdictional, rendering any judgment or order obtained thereby void.  Jones v. Wallis, 211 NC App. 353, 712 S.E.2d 180 (2011).

[2] Please note that service by summons without an attached Complaint does not necessarily violate constitutional due process mandates.  For example, North Carolina, under its civil procedure rules, permits service by publication of the notice of service of process.  North Carolina Rules of Civil Procedure, G.S. §1A-1, Rule 4(j1).  This notice of service of process, unlike the South Carolina summons, includes a description of the relief being sought, a function which would otherwise be accomplished by service of the complaint.  North Carolina’s approach not only gives notice of the relief being sought, but also does not involve a conflict between the civil procedure requirements regarding the commencement of an action and the law regarding service by publication.  The same cannot be said of South Carolina’s statute on service by publication.