Moore v. N. C. Railroad, 67 N.C. 209 (1872)

June 1872 · Supreme Court of North Carolina

67 N.C. 209

W. P. MOORE vs. THE N. C. RAILROAD COMPANY.

The Clerk of the Superior Court of one County has no right to issue a summons returnable to the Superior Court of another County; hut irregularity of service is waived by an appearance and answer in bar.

[¡¡Towerton v. Tate, 6Q N. C. R. 431.]

Motion to dimiss a civil suit, heard before'Logan, J., at the Superior Court of Cabarrus, Spring Term, 1872.

The plaintiff sued out a summons from the Clerk of the Superior Court of Mecklenburg County, against the defendant, returnable to Spring Term, 1870, of Cabarrus Superior Court. The summons was returnedexecuted.” Plaintiff filed a complaint at the appearance term, and at the same term the defendant answered in bar of the action. At Spring Term, 1872, a motion to dismiss was made by the defendant’s counsel, upon the ground that the clerk of Mecklenburg had no power to issue a summons returnable to Cabarrus Superior Court. It was agreed that plaintiff lived in Craven, and that defendant was a corporation, extending through and doing business in the Counties of Mecklenburg and Cabarrus. His Honor allowed the motion and dismissed the suit. Prom which judgment plaintiff appealed to the Supreme Court.

J. B. Brown and Wilson, for plaintiff.

O. Dowd and Barringer, for defendant,

Rodman* J.

Tire Clerk of the Superior Court of Mecklenburg has no right to issue a summons returnable to tlie Superior Court of Cabarrus. Howerton v. Tate 66 N. C. 431; Acts, 1868-9, ch. 76, sec. 2.

The defendant nevertheless appeared and answered in bar. "We are of opinion that the irregularity was thereby waived. If no summons at all had been issued, the filing of a complaint- and answer would have constituted a cause in Court,

Judgment reversed, and case remanded, to be proceeded in according to law.

Let this opinion he certified,

í’jsr Curiam, Judgment reversed.