State v. Moore, 230 N.C. 648 (1949)

Sept. 28, 1949 · Supreme Court of North Carolina
230 N.C. 648


(Filed 28 September, 1949.)

1. Process § 13—

It is the service of process and not the return of the officer which confers jurisdiction on the court, G.S. 1-101, and the return merely perfects the record and furnishes proof of service for the guidance of the court, G.S. 1-102.

3. Same—

While it is a better practice for officers to make their returns of process show with particularity upon whom and in what manner the process was served, their endorsement “served” implies service as the law requires and such return signed by the officer in his official capacity is sufficient to show prima facie service at least, and error in the date of service is immaterial.

S. Process § 14—

The court has discretionary power to permit an officer to amend his return by adding certain specifications as to the manner of service or the acts done in compliance with the statute, by including the names of the pei'sons served and the capacity in which they were served, by adding or correcting the signature of the officer, or in any other manner to disclose full compliance with the law.

4. Process § 7—

Service of the sci. fa. on the local agent of a bonding company who had executed the bond in behalf of the corporate surety is service upon the corporation. G.S. 1-97.

Appeal by defendant bonding company from Nettles, J., April Term, 1949, TeaNsylvaNia.


Criminal prosecution beard on motion of defendant bonding company to vacate judgment absolute on defendant’s appearance bond for want of service of sci. fa.

Defendant bonding company became surety on the appearance bond of defendant Moore. Judgment nisi was entered on tbe bond. Sci. fa. was issued 3 July 1945. The sheriff returned the sci. fa. endorsed: “Served on Tar Heel Bonding Co. 7-1-45. B. H. Freeman, Sheriff.” Thereafter, at the December Term, 1945, judgment absolute was entered.

At the April Term, 1949, appellant filed motion to vacate the judgment alleging that the sci. fa. was not properly served on it for that it was not served on any officer of the corporation and that its officials learned of the judgment for the first time at the December Term, 1948.

*649When tbe motion came on to be beard, tbe court below permitted tbe sheriff to amend bis writ by adding thereto tbe following:

“By delivering a copy to T. S. Wood, Local Agent of Tar Heel Bonding Company. B. H. Freeman, Sheriff.”

It thereupon denied tbe motion to vacate and defendant bonding company appealed.

Ramsey & Hill for plaintiff appellee.

Charles O. P. Trexler and C. P. Barringer for Tar Heel Bond Company, appellant.

BaeNhill, J.

Tbe appellant, in tbe affidavit filed in support of its motion, does not assert that T. S. Wood was not its local agent at tbe time of the service of tbe sci. fa. Nor does it deny that tbe sci. fa. was served on him. It excepts to tbe action of tbe court in allowing tbe sheriff to amend bis return and to tbe findings that (1) tbe return of tbe sheriff as amended cures tbe defect in tbe service, and (2) the sci. fa. was, in law, ■served on it. These exceptions are without substantial merit.

It is tbe service of summons and not tbe return of tbe officer that confers jurisdiction. G.S. 1-101. Tbe return merely perfects tbe record and furnishes proof of service for tbe guidance of tbe court. G.S. 1-102.

An officer having process in band for service must note on tbe process tbe date received by him, G.S. 1-94, and make due return thereof. G.S. 162-14. These are tbe affirmative requirements of tbe statutes.

Tbe officer’s return is bis answer touching what be is commanded to do by tbe writ. “It is tbe bringing of a process into court with such endorsements as tbe law requires, whether they in fact be true or false.” Watson v. Mitchell, 108 N.C. 364; Waugh v. Brittain, 49 N.C. 470; Person v. Newsom, 87 N.C. 142; Lee v. Hoff, 221 N.C. 233, 19 S.E. 2d 858.

While it is tbe better practice for officers to make their returns with that degree of particularity necessary to show exactly upon whom and In what manner tbe process was served, failure to do so does not invalidate tbe service.’ “Served” implies service as by law required. Strayhorn v. Blalock, 92 N.C. 293; McDonald v. Carson, 94 N.C. 498; Isley v. Boon, 113 N.C. 249. So then tbe return “served,” or as here, “served on Tar Heel Bond Company. 7-1-45,” signed by tbe officer in bis official •capacity is sufficient — at least prima facie — to show service. Strayhorn v. Blalock, supra. Tbe error in tbe date is immaterial.

Tbe court in its discretion may permit an officer to amend bis return by adding further specifications as to the manner of service or tbe acts done in compliance with tbe statute, by including tbe names of tbe persons served and tbe capacity in which they were served, by adding or correcting tbe signature of tbe officer, or in any other manner deemed *650necessary to disclose full compliance with the law. Calmes v. Lambert, 153 N.C. 248, 69 S.E. 138; Grady v. R. R., 116 N.C. 952; Lee v. Hoff, supra. Therefore, even if the original return was deficient — and this we do not concede — the court below was acting within its authority in permitting the amendment.

The sci. fa. was served on a local agent of appellant — the agent who executed the bond in its behalf. This was service upon the corporation. G.S. 1-97; Grady v. R. R., supra; Clements v. R. R., 179 N.C. 225, 102 S.E. 399.

It follows that the judgment absolute is not subject to attack upon the grounds set forth in appellant’s motion and supporting affidavit. Hence the refusal of the court to vacate the same may not be held for error.

The judgment below is