The application of the appellant, heretofore made for a certiorari to have the case settled by the judge, having been denied, they now move to have their case on appeal treated as the proper case on appeal, although service thereof has not been accepted, nor has it been served by an officer, claiming that placing the statement of the case in the mail in time to reach the appellees was due service. They admit that to do so would be to overrule numerous decisions of this Court, which they ask ns to review for that purpose.
The original Code of Civil Procedure, Section 80, provided for service of papers in a cause, either personally or by filing in the clerk’s office, and O. C. P., Sec. 301, (the original of the present Section 550,) provided for service of the case and counter-case on appeal, “in the manner provided by Section 80,” and the same was true of Sec. 349 (now 597) as to serving notices. The inconveniences and manifest evils which arose from thus filing papers which opposite counsel might not see, or might overlook till too late, culminated (after some unpleasant incidents) in a repeal of Section 80, and the simple pro*317vision in Sections 550 and 597 that the statement of the case on appeal, and all notices, “shall be served” on respondent, &c. Where no other mode of service is provided for, the Court held that service must be made by an officer, unless service is accepted, according to Section 228 for service of summons. Allen v. Strickland, 100 N. C., 225. That case, it is true, was as to the attempted service of a notice by mail, but the principle applies to all legal papers as to which “service” is prescribed, without indicating any deviation from the ordinary manner of service, and The Code, Sec. 597, provides for service of “notices and other papers” in the same manner. Allen v. Strickland has since been followed by Clark v. Manufacturing Company, 110 N. C., 111, and State v. Johnson, 109 N. C., 852, (as to service of notice of appeal when taken out of court,) the Court saying: “ The requirement of service by an officer is not only statutory but reasonable, as it prevents disputes like this, as to whether there has been service or not; ” also in State v. Price, 110 N. C., 599, (as to the service of the case on appeal,) which is followed in Herbin v. Wagoner, 118 N. C., 656 ; Forte v. Boone, 114 N. C., 176 ; Cummings v. Hoffman, 113 N. C., 267; McNeill v. Railroad, 117 N. C., 642; Roberts v. Partridge, 118 N. C., 355 ; and there are others. Aside from the construction of the statute being so thoroughly settled, if it were res integra it could not be held otherwise. With the policy of the statute in requiring service, if not accepted, to be made by an officer, we have nothing to do; but it admits of more than a doubt if the substitution of service by counsel or parties, and proved by their oaths, would not lead to the greater evil of counter-affidavits as to service being made in time, if at all. The former provision, as to service by filing in the clerk’s office, was so prolific of evil as to cause its repeal. At present any *318hardship is averted by acceptance of service, or, if tbat is refused, service by an officer, which modes avoid the unpleasantness which might otherwise occur more or less frequently to the profession and to the courts of settling such matters upon the controverted affidavits of counsel. Service of all papers, by our statutes, (except in cases where service by publication is authorized,) must be by an officer, or acceptance of service, except only subpoenas, as to which service may be made by one not an officer, but even then the service must be “ by one not a party to the action,” and the return sworn to. Code, See. 591 (4).
The counsel moves, in the absence of a ease on appeal, to dismiss the action because the complaint fails to state a cause of action. It is true that this motion can be made in this Court for the first time, Rule 27 ; but the objection to the complaint is not well taken. Paragraph 8 is sufficient as an allegation of fraud and undue influence.
There being ho case on appeal, and no errors appearing upon the face of the record pioper, the judgment is affirmed.
Affirmed.