\On tbe facts appearing of record, and in like case whenever tbe remedy is available to him, tbe procedura open to defendant is by motion before tbe justice who tried tbe cause, j This was virtually held on a former appeal between tbe parties, 163 N. C., 486, and tbe position is in accord with our decisions on tbe subject. Thompson v. Notion Co., 160 N. C., 519; Clark v. Mfg. Co., 110 N. C., 111; Whitehurst v. Transportation Co., 109 N. C., 342; McKee v. Angel, 90 N. C., 60.
In Thompson v. Notion Co., supra, that being a case where service bad been regularly made by publication and defendant bad neither appeared nor answered, tbe decision was made to rest on section 1491 of Revisal, which allowed an appeal to be taken in such cases within fifteen days after personal notice of tbe rendition of tbe judgment, but Associate Justice Allen, in bis well considered opinion, is careful to note tbat, in case of “defective process, or where there is tbe appearance of service when in fact there was none, tbe remedy by motion before tbe justice is properly available.”
Both in tbe Superior and justices’ courts tbe statutory limits as to time within which motion of this character shall be made are cases where tbe proceedings are in all respects regular, and do not apply in cases when there is defective service of process or an entire absence of it. Massey v. Hainey, 165 N. C., 174; McKee v. Angel, 90 N. C., supra.
Authority here is also to tbe effect tbat where a statute provides for service of summons or notices in tbe progress of a cause by certain persons or by designated methods, tbe specified requirements must be complied with or there is no valid service. Martin v. Buffalo, 128 N. C., 305; Smith v. Smith, 119 N. C.., 314; Allen v. Strickland, 100 N. C., 225; McKee v. Angel, supra.
This, then, being proper procedure, and tbe only service of the original process in this cause having been by means of tbe telephone, “tbe sheriff • being at Wadesboro and defendant at Morven, 9 miles distant,” tbe question chiefly and directly presented by this appeal is whether, in this jurisdiction, there can be a valid service of original process by means of tbe telephone. (Our statute on tbe subject (Revisal, sec. 439) provides tbat tbe summons “shall be served, in all cases except as hereinafter provided, by tbe sheriff or other officer reading tbe same to the party or ■ parties named as defendant, and such reading shall be a legal and sufficient service,!/
This method of serving process was- established by the Legislature of 1876 and 1877, and at the time the telephone as a general system of communication was not in existence. An interesting account of its origin and development will be found in 126 U. S. Reports, the volume being devoted to a report of the telephone cases, from which it appears that the patents were applied for in 1876; that the litigation concerning *19them was continued for something over eleven years, and it was not until 1887 that decision was made declaring the rights in dispute to be in Professor Bell and his associates, and although the active development of the system was immediately and successfully entered upon, the telephone, as now operated, did not come into very general use and application until about the beginning of the present century, or a short period preceding that date.
(At the time, therefore, when this legislation was enacted, the only method of service contemplated or provided for was by reading the summons in the personal presence of the party, and we are of opinion that this is and should continue to be the correct interpretation of the statute as it is now written^ This service of original process by which courts of justice acquire jurisdiction over the rights of person and of property of the citizen has always been, and properly, regulated with circumspect care. In the Code of ’68 it could only be done by leaving a copy of the summons under the court seal; later, in ’76 and ’77, the seal was omitted when the process ran to the county of the officer who issued it and, at the same session, a service by reading by the sheriff or some officer was established; both of these changes, it will be noted, being by legislative enactment. And this method of service, by reading in the personal presence of the party, affording as it does to the sheriff a more satisfactory and certain means of identifying the person on whom the service is made and giving assurance to the litigant of the'true import of the act 'by present exhibition of the process, giving him better opportunity, too, to ascertain the position and authority of the officer, and being the method contemplated and described by the statute at the time it was passed, and the only one recognized for twenty years thereafter, should not be altered, if at all, save by express provision of the statute law.
The only valid objection to be made to this position is that it may, at times, make for the inconvenience of the officer; but, even as to him, the proposed change1 is of doubtful benefit. ~We know that a sheriff or other officer having a process of this character in charge is properly held to a strict account as to the verity of the service. If he makes a false return, he and his bondsmen may be subjected to serious penalties, and, looked at only from the officer’s point of view, there is grave question if in the effort to perform this important duty he should be subjected to the additional uncertainties, sure to arise by recognizing the proposed manner of service.
On authority the question does not seem to have been very much discussed in the courts. The nearest case we have been able to find on the subject is in Ex Parte Terrel, Court Criminal Appeals, Texas, reported in 95 S. W., 536. That case was an attachment for contempt against a defaulting witness, their statute requiring service of subpoena by “read*20ing same in tbe bearing of tbe witness/’ and it was beld that service by telephone was no valid service; and tbe position derives some support in a New’York case of Gilpin v. Savage, 201 N. Y., 167, to tbe effect that presentment of a note and demand for payment must be by actual exhibit of tbe instrument, and that a demand made by ’telephone was insufficient.
(We are aware that in a number of cases it has been beld that, under regulations requiring service of notices to be in writing, service by means of a telegram, written out by tbe agent and,delivered, has been upheld; but these were generally in instances whnre tbe parties bad voluntarily adopted that method of communication. jAnd where tbe principle has been approved in reference to court process, tbe statute did not require that service be made by any particular or designated person, and tbe party being charged with tbe duty of having tbe notice served, tbe Court has beld that such party could make tbe company bis agent to write the notice, within tbe meaning of tbe law. Such was tbe case presented in Western Union v. Bailey, 115 Ga., 725, a case to which we were cited.
On service of writs of certiorari tbe statute required that tbe applicant should cause written notice of its proper sanction to be served on bis opponent, and service by telegram was upheld, on tbe ground that, as tbe statute required tbe party to cause notice to be served and did not designate by whom, tbe plaintiff could designate tbe company as bis agent, and tbe notice so-written out would be considered a sufficient compliance with tbe law. Even in that aspect tbe case seems to have caused tbe Court much perplexity, and one of tbe judges dissented.
Again, there are cases in which notices of injunction were served by telegram and tbe service was sustained, but these decisions were in application of tbe principle declared by tbe English chancellors, to tbe effect that, under certain circumstances, if a party in an injunction proceeding knew of tbe existence of tbe order, and intentionally violated it or knowingly or intentionally acted so as to render tbe same of noneffect, be could be beld for contempt. Vansandan v. Rose, 2 Jac. and Walker, 264; Osborne v. Tenant, 14 Ves., 136; Rulings by Lord Chancellor Elden, tbe first referred’to in Cape May R. R. v. Johnston, 35 N. J. Eq., pp. 422-425, and tbe second in Davis v. Fiber Co., 150 N. C., 87, erroneously printed in this last citation as Lord Erskine. But, while this ruling may be upheld in proceedings of that character, tbe exigency of tbe case at times requiring tbe recognition of such a principle, it should not be allowed to prevail in reference to tbe service of original process where, as in this case, tbe statute, as heretofore stated, at tbe time it was enacted contemplated and provided for a service by reading tbe writ in tbe personal presence of tbe party, and involving, too, the necessary exhibition of tbe process to tbe litigant.
*21On the facts in evidence, we are of opinion, and so bold, that there has been no valid service of process shown, and this will be certified, that the judgment of the justice’s court be set aside and defendant allowed to answer.