Erwin v. Lawrence, 70 N.C. 282 (1874)

Jan. 1874 · Supreme Court of North Carolina

70 N.C. 282

J. R. ERWIN, Assignee v. L. H. LAWRENCE and others.

A suit that has abated by the death of the principal in a Sheriffs bond, cannot be revived against the sureties, when the original summons was never served on the sureties.

Civil aotioN, tried before bis Honor, Moore, J., at the July (Special) Term, 1873,) of MeoKleNeueC Superior Court.

The defendants, sureties on the official bond of a deceased sheriff, file affidavits denying that the summons in this case was ever served on them. His Honor found the allegations to be so, and dismissed the proceedings, when the plaintiffs appealed.

The facts of this case are stated in the opinion of the Court.

Wilson & Son and Brown, for appellant.

H. W. Onion and Vance dé Dowd, contra.

Reads, J.

The writ issued against Lawrence and his sureties upon his official bond as sheriff, and service was acknowledged by Lawrance ; but there was no service upon the defendants who were his sureties. Lawrence died, and after the suit had abated as to him and discontinued as to the defendants, a summons was issued to the defendants to make them parties in that suit which had been, but which was then o%4 of existence.

"We considered whether we could not treat the summons to the defendants as an original summons, and treat the complaint as a new complaint against them, or else allow a complaint to be filed and the action goon. But the objection is,-that it would subject them to costs, which have accumulated in a case in which they were not parties, and besides it might deprive them of some advantages which they would have in a new suit.

Pee Cueiah. Judgment affirmed.