Pass v. Elias, 192 N.C. 497 (1926)

Nov. 10, 1926 · Supreme Court of North Carolina

192 N.C. 497

JOE PASS v. MARY ELIAS.

(Filed 10 November, 1926.)

Summons — Process—Statutes—Courts—Justices of the Peace — Superior Courts — Special Appearances — Motions.

The same requirements as to a proper service of summons in a civil action issuing from the court of a justice of the peace, must be observed by the process officer as from the Superior Court, C. S., 1500, Rule 16, and where a copy thereof is not served at the time of its reading to the defendant, the service is invalid, and the action will be dismissed on special appearance and motion, when the defendant has preserved this right by a like motion in the court of the justice of the peace. C. S., 1487, 1488 ; 3 C. S., 479.

Civil actioN, before Webb, J., at August Term, 1926, of Guilfoeb.

On 17 April, 1925, the plaintiff instituted an action before a justice of the peace to recover of the defendant the sum of $18.00. The return upon the summons is in these words: “Eeceived 24 April, 1925. Served 24 April, 1925, by reading the within summons to Mary Elias. D. B. Stafford, S. E. B. Ballinger, D. S.” The defendant, through her counsel, made a special appearance in the court of a justice of the peace for tbe purpose of dismissing tbe action, for tbe reason tbat the summons bad not been properly served upon tbe defendant. Tbe justice of tbe peace denied tbe motion and proceeded to judgment. Tbe defendant appealed to tbe Superior' Court, properly protecting all rights, and in tbe Superior Court made a special appearance to dismiss for the reason given in tbe magistrate’s court. Tbe motion was overruled, and the case proceeded to trial over tbe objection of defendant, resulting in a verdict in favor of plaintiff and against tbe defendant for tbe said sum of $18.00. Whereupon tbe defendant appealed.

No counsel for plaintiff.

Thomas J. Hill for defendant.

BeoodeN, J.

Tbe question is this: • Must tbe summons in tbe court of a justice of tbe peace be served by delivering a copy to tbe defendant ?

3 C. S., 479, provides tbat “tbe officer to whom the summons is addressed must note on it tbe day of its delivery to him, serve it by delivering a copy thereof to each of tbe defendants, and return it within tbe time specified therein for its return, etc.”

C. S., 1500, rule 16, provides: “Tbe chapter on Civil Procedure, respecting forms of actions, parties to actions, tbe times of commencing actions, and tbe service of process, shall apply to justices’ courts.”

C. S., 1487,, provides for tbe issuance and form of a summons and tbe return date in tbe courts of a justice of tbe peace.

C. S., 1488, provides tbat tbe officer to whom tbe summons is delivered shall return tbe same within five days after its receipt.

But neither of these statutes provides a method of serving tbe process, except tbe method prescribed in tbe chapter on Civil Procedure. Indeed, before tbe passage of tbe new practice acts, a summons issued by a justice of tbe peace against a corporation required tbat service should be made by delivering a copy. This was tbe identical method prescribed for serving summons in actions commenced in tbe Superior Courts against corporations.

Construing C. S., sec. 1500, sub-sec. 16, and C. S., 479, together, it is clear tbat a summons issued from a court of a justice of tbe peace must be served in tbe same manner as a summons issued from tbe Superior Court. As no copy of tbe summons was left with tbe defendant, as required by law, tbe defendant was not properly in court,' and tbe motion to dismiss should have been allowed. Aaron v. Lumber Co., 112 N. C., 189; Lowman v. Ballard, 168 N. C., 18; Hatch v. R. R., 183 N. C., 617.

Beversed.