Allen v. Strickland
| Decision Date | 22 May 1888 |
| Citation | 100 N.C. 225,6 S.E. 780 |
| Court | North Carolina Supreme Court |
| Parties | Allen v. Strickland. |
Practice in Civil Cases—Service of Notice by Mail.
Under Code N. C. § 597, which provides that notices shall be in writing, and may be served on the party or his attorney personally, or, in certain cases, by leaving the same at the residence or office of the person served, or by publication, a notice of an exception to an appraisement of property claimed as exempt from execution is insufficient when sent through the mails; proof of service of such notice being impracticable. And in such case a motion for the issuance of alias notices is properly refused.
Appeal from superior court, Franklin county; Merrimon, Judge.
C. W. Cooke, for appellant.
N. Y. Gulley, for appellee.
Merrimon, J. W. B. Allen obtained judgment on November 2, 1886, before a justice of the peace, against Robert Strickland, and procured execution to issue thereon to F. C. Holden, the constable. Strickland claimed hispersonal property exemption. The constable summoned as appraisers and assessors John Knight, Nathan May, and C. C. Jeffreys, who, on the 3d of November, 1886, appraised and allotted to the defendant certain articles of personal property as his exemption. They made return of their proceeding to the justice's court, and the constable levied on the excess of personal property. On the 10th of November, 1886, the defendant being dissatisfied with the valuation and allotment of the appraisers, filed with the clerk of the superior court a transcript of the return of the appraisers, and with it a statement in writing of his objection to said return. That, at the same time, the defendant, by his attorney, prepared and signed a written notice for the plaintiff in execution and the constable, of the defendant's dissatisfaction, and exception to the valuation and allotment of the appraisers, and that his exceptions would be filed with a transcript of the return with the clerk of the superior court. The attorney of the defendant on the same day took the said written notice to the attorney of the plaintiff in the case of W. B. Allen v. Robert Strickland, and told him what the notice was, and showed the same to the said attorney, but did not leave it with him, and asked him if he would accept service thereof. He replied that he preferred that notice should be sent to Mr. Allen, meaning thereby the plaintiff. The attorney of the defendant then and on the same day mailed a copy of said notice to Allen, and a copy also to Holden, the constable, directed to their post-office, Youngs-ville, on the Raleigh & Gaston Railroad, distant from Louisburgh 16 miles, and between which two places there is a daily mail. Allen received the notice within 10 days after the allotment of the exemption; but Holden, although he resided within one mile of the post-office, did not receive his until the eleventh day after the allotment. The clerk of the superior court placed the case on the civil issue docket for the next term of court, which
commenced on the——of January; that, at said term, the attorneys for the
plaintiff, Allen, entered a special appearance, stating that they did so for the purpose of moving to dismiss on the ground that notice had not been properly served. The defendant moved for an alias notice. The defendant insisted on his motion that he be allowed to issue alias notices. The court, being of opinion that notice had not been served, that it had not the power to allow the defendant's motion for alias notices, and resting his petition on that ground, and stating that if it were in his discretion he...
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Hatch v. Alamance Ry. Co.
... ... local agent (C. S. § 483); and this requirement, it is held, ... must be strictly observed ( Allen v. Strickland, 100 ... N.C. 226, 6 S.E. 780; Smith v. Smith, 119 N.C. 314, ... 25 S.E. 878; Lowman v. Ballard, 168 N.C. 18, 84 S.E ... 21, ... ...
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United States v. American Lumber Co.
...be one authorized by law, or it is no notice, no matter how accurate it may be. Kuntz v. Sumption, 117 Ind. 1, 19 N.E. 474; Allen v. Strickland (N.C.) 6 S.E. 780. Nor was it necessary, in view of the allegations of the as to the nonresidence of the defendants, first to obtain the issuance o......
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Martin v. Bufpalob
...statute requires notice to be given, it must be in writing, " etc., "and served in the manner required by Code, § 597." Allen v. Strickland, 100 N. C. 225, 6 S. E. 780; Turner v. Holden, 109 N. C. 182, 13 S. E. 731. But that has no application to the notification given by the sheriff to the......