Cox v. Buie, 34 N.C. 139, 12 Ired. 139 (1851)

June 1851 · Supreme Court of North Carolina

34 N.C. 139, 12 Ired. 139

WILLIAM COX vs. WILLIAM C. BUIE.

In a proceeding, under our Statute, to recover damages for overflowing land’ by a mill pond, it is not necessary that a copy of the petition should be served-' on the' defendant, it is sufficient for the plaintiff to give the defendant-ten days notice, in writing, of his intention to-file the petition.

Appeal from the Superior Court of Law of Davidson-County, at the Fall Term,. 1850, his Honor Judge Manly presiding.

This is a petition for damages for overflowing land by a mill pond. It was filed at May County Court, 1849, which-was on the second Monday. On the first day of the month, more than ten days previous to the term, the petitionergave-the defendant notice, in writing,, of his intention to file the petition at the next Term ; arid on the ?th day of the month, the plaintiff served the defendant with a copy of the petition. At May Term the defendant put in an answer, set. ting forth several grounds on which he claimed the right to erect his mill and overflow the plaintiff’s land, and denying the plaintiff’s right to damages. It further stated the facts as to the serving of the notice and copy of the petition,, and insisted, that the copy ought not to have been served until after the County Court, and that for that reason the-petition ought not to be entertained, but dismissed. The County Court, nevertheless, ordered a jury, and damages were assessed and judgment rendered, and the defendant appealed. In the Superior Court, the defendant renewed the objection, that the suit was not properly constituted,,and prayed the Court to dismiss it. But the Court refused, and-after a trial at bar. and judgment for the damages assessed,, the defendant again appealed..

No counsel for the plaintiff.

Mendenhall, for the defendant.

Ruffin, C. J.

If the objection were open alter a full defence on the merits, it would not avail the defendant; for there is nothing in it! The Statute does not provide for or intend that a copy of the petition should be served. The purpose was to give a summary remedy on motion at the same Term at which the petition was filed. But to prevent surprise, it requires the notice in writing of the intention to file the petition. That was just the course in the Court of Chancery, before the Statute required the master to send a copy of the bill with the subpoena. Before that, the plaintiff" sued out his subpoena, often before his bill was filed ; and the defendant, being served with the process, bought the bill for himself, if he wished one. In respect to petitions of this kind, we believe a practice has grown up of serving a copy of the petition, in order to obviate possible objections for omissions in the notice. Though unnecessary, it may thus be convenient tq the petitioner to serve the copy. That is at his own expense, and can by no possibility do any wrong to the defendant.

Per. Curiam. Judgment affirmed.