Grant v. Burgwyn, 79 N.C. 513 (1878)

June 1878 · Supreme Court of North Carolina

79 N.C. 513

^* WILLIAM GRANT, Adm’r, v. S. E. BURGWYN and another.

Attachment — Sufficiency of Affidavit — Service by Publication.

Where, in a proceeding by attachment, it appears from the whole record, that the provisions of the statute have been substantially complied with, the action will not be dismissed or the attachment dissolved.

Motion to dismiss the action heard at Spring Term, 1878, of Northampon Superior Court, before Seymour, J.

The plaintiff as administrator with the will annexed of Edmund Jacobs, deceased, brought this action for-a money demand, and the defendants moved to dismiss upon the ground that the summons which issued June 18th, 1877, returnable to Fall .Term of said Court, was not served, and, no alias was issued. His Honor found as a fact-from the evidence that service had been made by publication. The defendants also moved to dissolve an attachment which had theretofore issued upon an affidavit made on the 18th of. June, 1877, in which the plaintiff stated that a summons had been issued and returned not served — defendant not to be found, &c. — ; that defendant was a non-resident but had property in this State, and was indebted to plaintiff’s testator in a certain ampunt for which a cause of action exists, &o. His Honor refused the motion and the defendants appealed.

Messrs. W: Bagley, J. B. Batchelor and Muller^ Moore, for plaintiff;

Messrs. W. G. Bowen and T. N. Sill, for defendants;

* Smith C. J. did not sit on the hearing of this case.

Faircloth, J.

The defendants entered a special appearance and moved: (1) To dismiss the action because there was no service of the summons returnable to Fall Term, 1877, and no alias issued. (2) To dissolve the attachment for want of sufficient affidavits. The attachment issued before said Fall Term. In regard to the first motion His Honor after setting out the evidence finds as a fact, that service was had by publication, and on examination of the whole record we think his finding was correct and his refusal of the motion is sustained. In regard to the second motion we are of the same opinion. The affidavit of June the 18th is in the very words of the statute and that must be sufficient. In looking at the whole record it appears "that the statute on this subject has been substantially complied with.

No error. Affirmed.