Civil
action to recover for injuries sustained in automobile
collision resulting allegedly from actionable negligence of
defendants.
Summons
for defendant Walker Allen, duly issued by Clerk of the
Superior Court of Cumberland County, North Carolina, on May
7, 1938, was served on May 9, 1938, upon A. J. Maxwell
Commissioner of Revenue of North Carolina, under provisions
of the statute, Section 1 of Chapter 75, Public Laws 1929
Michie's North Carolina Code of 1939, Section 491(a).
Defendant
Allen upon special appearance moved the court to enter an
order dismissing the action as against him for reasons stated
to the effect that upon the facts of record he, Allen, is not
amenable to process served in the manner here attempted, and
that, therefore, the court has acquired no jurisdiction of
his person.
The
court below, in addition to finding facts as to manner in
which summons was served, finds the following facts:
"2.
The crossing accident alleged in the complaint is based upon
an automobile accident occurring in North Carolina, on or
about March 16, 1938, at the intersection of Highways Nos. 15
and 91. One of the automobiles involved in the accident
belonged to the plaintiff, and the other automobile belonged
to the defendant, R. C. Sawyer; and, at the time of the
accident, was being driven by the defendant, R. L
Cottingham, both
of the defendants being in the Sawyer automobile at the time
of the accident.
"3.
At the time of the accident, the defendant, Walker E. Allen
was a citizen and resident of Dillon County, South Carolina,
and was the duly elected, qualified and acting Sheriff of
Dillon County, South Carolina, and the defendant, R. C.
Sawyer, was a Deputy Sheriff of Dillon County, S. C., duly
qualified and acting as such, and under the said Walker E.
Allen, Sheriff of Dillon County, South Carolina. The
defendant, Robert L. Cottingham, was not a regular Deputy
Sheriff of Dillon County, South Carolina, but was an employee
of Dillon County, South Carolina, and was acting for a
particular purpose, to wit; the return of a prisoner from the
State of Virginia to South Carolina.
"4.
At the time of the accident, the defendant Sawyer and the
defendant Cottingham were both citizens and residents of
Dillon County, South Carolina; and the defendant, R. C.
Sawyer, as a Deputy Sheriff of Dillon County, South Carolina,
was on his way to the State of Virginia in pursuance of his
authority as Deputy Sheriff under the said Walker E. Allen,
Sheriff, and at the request of said Sheriff, and for and on
behalf of said Sheriff, to obtain a prisoner for said
Sheriff.
"5.
That the said defendant, R. C. Sawyer, acting as Deputy
Sheriff to the said Walker E. Allen, Sheriff, and with the
knowledge and consent of said Walker E. Allen, Sheriff, and
for the purpose of procuring for the said Sheriff the
prisoner in Virginia, engaged the defendant, Robert L.
Cottingham, to drive the automobile to Virginia, and to
assist the said R. C. Sawyer as Deputy Sheriff in returning
said prisoner to the said Walker E. Allen, Sheriff of Dillon
County, South Carolina.
"6.
That at the time of the accident, the said Robert L.
Cottingham was operating said automobile for and on behalf of
said Walker E. Allen, Sheriff, and R. C. Sawyer, Deputy
Sheriff of Dillon County, South Carolina, in connection with
the official business of said Sheriff and Deputy Sheriff, in
securing said prisoner; that said automobile was owned by the
defendant, R. C. Sawyer, and was being used by him at the
time of said accident in his official capacity as Deputy
Sheriff under said Walker E. Allen, Sheriff, and was being
used in connection with the business of said Walker E. Allen,
Sheriff; that the said Walker E. Allen owned no interest in
said automobile."
Upon
these findings of fact, and, being of opinion that the
automobile involved in the accident was being operated under
the provisions of the statutes so as to make the Commissioner
of Revenue of the State of North Carolina the agent or
attorney for the defendant Walker Allen, Sheriff of Dillon
County, South Carolina, and that service of process upon the
said Commissioner of Revenue, as agent or attorney for the
said Walker Allen, Sheriff, as aforesaid, is valid, the court
so adjudged, and entered order denying the motion of said
Allen to dismiss the action as against him.
The
record fails to show any evidence to support findings of fact
(1) that defendant, Sawyer, as deputy sheriff, with knowledge
and consent of defendant Allen, Sheriff, engaged defendant
Cottingham to drive the automobile to Virginia, or (2) that
defendant "Cottingham was operating said automobile for
and on behalf of said Walker Allen, Sheriff".
Defendant
Allen appeals therefrom to the Supreme Court, and assigns
error.
Ellis
& Nance, of Fayetteville, and Joyner & Yarborough, of
Raleigh, for a...
