#### V. D. FOSTER v. NEWBY HOLT and CARL THOMAS HOLT.

(Filed 8 April, 1953.)

1. Process § 10—

Service of process under G.S. 1-105 and G.S. 1-106 is ineffective to obtain service on a citizen and resident of tbis State while such citizen is residing temporarily outside this State, or is in the armed services of the United States and stationed in another state or foreign country.

2. Appeal and Error § 9—

Where there is ho appeal from judgment dismissing the action as to one defendant for failure of service of process, plaintiff may not later contend that the judge was without authority to dismiss the action because there was an outstanding valid *alias*summons at the time the ruling was made.

3. Pleadings § 3a—

The complaint should allege the ultimate facts upon which plaintiff’s claim for relief is founded and not the evidential facts required to prove the existence of the ultimate facts.

4. Pleadings § 31—

Motion by a defendant in an automobile accident case to strike all reference in plaintiff’s pleading to collision and liability insurance on the cal-is properly allowed.

Appeal by plaintiff from *Moore, J.,*December Term, 1952, of Eak-dolph.

Tbis is an action to recover for personal injuries and property damages resulting from tbe alleged negligence of the defendant, Carl Tbomas Holt.

*496Tbe plaintiff alleges in bis complaint tbat be was injured and damaged in an automobile collision on or about 15 July, 1951, between bis pickup truck and an automobile owned by tbe defendant Newby Holt and driven by bis son Carl Tbomas Holt; tbat tbe automobile was being driven witb tbe consent and permission of tbe defendant Newby Holt; and tbat tbe defendant Newby Holt provided *the*automobile for *the*use and *enjoyment*of bis family for general family purposes.

Tbe defendant Newby Holt filed an answer in wbicb be denied tbat be was the owner of tbe automobile involved in tbe collision, and alleged tbat it belonged to bis son, Carl Tbomas Holt, who was a minor over eighteen but under twenty-one years of age; tbat prior to tbe collision in question tbe said Carl Tbomas Holt bad been emancipated by bis parents and was at tbe time of tbe collision working for himself.

It further appears from tbe record tbat Carl Tbomas Holt is now in tbe United States Navy; tbat tbe summons issued in this action has never been personally served on him, and tbat be is still under twenty-one years of age.

After the return of tbe original summons unserved as to Carl Tbomas Holt, the plaintiff undertook to have process and a copy of *the*complaint served on him pursuant to tbe provisions of General Statutes 1-105 and 1-106, and caused to be issued to tbe Sheriff of Wake County, under date of 21 August, 1952, an instrument purporting to be an *alias*summons, directing him to serve *the*same upon *the*Commissioner of Motor Yebicles of North Carolina as statutory attorney for Carl Tbomas Holt. A copy of tbe complaint and *alias*summons were actually delivered to Carl Tbomas Holt by registered mail. Thereafter, a guardian *ad litem*for Carl Tbomas Holt, tbe infant defendant, was appointed, who made a special appearance on bis behalf and moved to dismiss tbe action as to him.

This matter came on for bearing on tbe special appearance and motion to dismiss tbe action, as to Carl Tbomas Holt, for lack of service of summons on him, at tbe October Term, 1952, of the Superior Court of Randolph County, before tbe Honorable William T. Hatch, Judge Presiding.

Tbe court held, it having been made to appear tbat Carl Tbomas Holt is a resident of tbe State of North Carolina, tbat tbe attempted service on him was and is null and void and tbat tbe action as to him should be dismissed, and entered judgment accordingly. No appeal was taken from this ruling. But thereafter, on 5 November, 1952, tbe plaintiff caused to be issued what purported to be an *alias*summons and bad it served on tbe same date on tbe guardian *ad litem*for Carl Tbomas Holt.

In *the*meantime, tbe plaintiff filed a reply to tbe answer of tbe defendant Newby Holt, in wbicb tbe plaintiff denied tbat Carl Tbomas Holt was tbe owner of tbe automobile involved in tbe collision in question, and again alleged tbat tbe car belonged to tbe defendant Newby Holt; tbat *497be took title thereto at the time of its purchase and also took out collision and liability insurance thereon.

The defendant Newby Holt filed a motion to strike all references to collision and liability insurance in the plaintiff's reply.

The matter came on for hearing at the December Term, 1952, of the Superior Court of Randolph County at which time the court held “that this case has been and is dismissed as to the said Carl Thomas Holt,” and allowed the motion to strike. From the judgment entered on the above rulings, the plaintiff appeals and assigns error.

*Ottway Burton for plaintiff, appellant.*

*H. M. Robins for defendants, appellees.*

DeNNY, J.

The method of serving process on a nonresident as provided in G.S. 1-105 and 1-106 is ineffective to obtain service of process on a citizen and resident of this State while such citizen is residing temporarily outside the State, or is in the armed services of the United States and stationed in another state or foreign country.

Therefore, at the time Judge Hatch dismissed this action as to the defendant Carl Thomas Holt, at the October Term, 1952, of the Superior Court of Randolph County, the infant defendant Carl Thomas Holt had not been served with legal process. However, the plaintiff contends that Judge Hatch was without authority to dismiss the action since at the time he made his ruling and entered his order, there was outstanding a valid *alias*summons and that the time for its service had not expired. Be that as it may, no exception was entered to the ruling or appeal taken therefrom. Hence, the action was terminated at that time as to Carl Thomas Holt and it is now too late to challenge the validity of the ruling. *Phipps v. Pierce,*94 N.C. 514; *Ferrell v. Thompson,*107 N.C. 420, 12 S.E. 109, 10 L.R.A. 361; *Barber v. Buffaloe,*122 N.C. 128, 29 S.E. 336; *Harrison v. Dill,*169 N.C. 542, 86 S.E. 518; *S. v. Bittings,*206 N.C. 798, 175 S.E. 299; *Sprinkle v. Reidsville,*235 N.C. 140, 69 S.E. 2d 179.

On the motion to strike, the rule laid down in *Winders v. Hill,*141 N.C. 694, 54 S.E. 440, and followed in *Revis v. Asheville,*207 N.C. 237, 176 S.E. 738, and other cases, is applicable here. In the *Winders case,*this Court said: “The function of a complaint is not the narration of the evidence, but a statement of the substantive and constituent facts upon which the plaintiff’s claim to relief is founded. The bare statement of the ultimate facts is all that is required, and they are always such as are directly put in issue. Probative facts are those which may be in controversy, but they are not issuable. Facts from which the ultimate and decisive facts may be inferred are but evidence, and therefore probative. Those from which a legal conclusion may be drawn and upon which the *498right of action depends are the issuable facts which are proper to be stated in a pleading. The distinction is well marked in the following passage: ‘The ultimate facts are those which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of those facts.' *Wooden v. Strew,*10 How. Pr. 48; 4 Enc. of Pl. and Pr., p. 612.”

In McIntosh, North Carolina Practice and Procedure, section 379, page 389, it is said: “The material, essential, or ultimate facts upon which the right of action is based should be stated, and not collateral or evidential facts, which are only to be used to establish the ultimate facts. The plaintiff is to obtain relief only according to the allegations in his complaint, and therefore he should allege all of the material facts, and not the evidence to prove them, . . .” *Hawkins v. Moss,*222 N.C. 95, 21 S.E. 2d 873; *Truelove v. R. R.,*222 N.C. 704, 24 S.E. 2d 537.

The judgment of the court below is

Affirmed.