Everitt v. Austin Bros., 169 N.C. 622 (1915)

Oct. 13, 1915 · Supreme Court of North Carolina
169 N.C. 622
L. E. EVERITT v. AUSTIN BROTHERS

L. E. EVERITT v. AUSTIN BROTHERS.

(Filed 13 October, 1915.)

Process — Nonresidents — Summons — Publication — Property — Courts — Jurisdiction.

A valid service of summons by publication cannot be made on a nonresident defendant unless he has property within the State which is brought under the control of the court; and where in attachment proceedings it appears that no property of the defendant has been reached or levied on, and the defendant has entered a special appearance for the purpose, his motion to dismiss will be allowed.

Appeal by defendant from Carter, J., at the May Term, 1915, of Edgecombe.

Action to recover damáges for personal injury.

Tbe defendants are nonresidents and no process bas been served on them. A warrant of attachment has been issued and a copy of the same was served on the board of commissioners of the county of Edgecombe, but there is no allegation that the county of Edgecombe is indebted to the defendant. The defendants entered a special appearance and moved to dismiss the action on several grounds assigned in a written motion. The motion was allowed, and the plaintiff excepted and appealed.

Daniel & Warren and Manning & Kitchin for plaintiff. ■

Henry A. Gilliam for defendant.

AlleN, J.

When there is no personal service of process upon a nonresident defendant, ■ the substituted service by publication is effectual only where property in the State is brought under the control of the court and subject to its disposition by process adapted to that purpose (Pennoyer v. Neff, 95 U. S., 714; Winfree v. Bagley, 102 N. C., 517), and as it does not appear that any property of the defendants has been reached or levied upon by the attachment issued in the action, and as there is no allegation that the county of Edgecombe, upon whom the warrant of attachment was served, is indebted to the defendant, the judgment of his Honor must be affirmed. There are other irregularities which it is not necessary to consider.

Affirmed.