The Problem with Service by Publication

by Nexsen Pruet, PLLC

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. 

[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.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC

Nexsen Pruet, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.