Burrell v. Hughes

• Decision Date: 14 May 1895
• Citation: 21 S.E. 971,116 N.C. 430
• Parties: STATE ex rel. BURRELL v. HUGHES et al.
• Court: North Carolina Supreme Court

21 S.E. 971

116 N.C. 430

STATE ex rel. BURRELL v. HUGHES et al.

Supreme Court of North Carolina

May 14, 1895

Appeal from superior court, Orange county; Hoke, Judge.

Action by the state, on the relation of Dennis Burrell, against John K. Hughes and others, to recover a penalty of $100 alleged to be due by reason of the failure of defendant sheriff to execute process in a criminal action, assigning four separate and distinct forfeitures. Demurrer to complaint sustained and plaintiff appeals. Reversed.

Where a summons was issued in the name of plaintiff, "Dennis Burrell," and the amended complaint declared in the name of the "state, on the relation of Dennis Burrell," the discrepancy is not material.

The plaintiff made affidavit that by reason of poverty he was unable to give bond or make deposit for costs for prosecution of suit. This was supported as to his poverty, and the belief that he had a good cause of action, by the affidavit of George W. Day; and C. D. Turner, a practicing attorney certifies that he has carefully examined the facts and law in the case, and is of opinion that plaintiff has a good cause of action. Thereupon the following order was made by the clerk of the superior court: "This cause coming on to be heard, it is ordered that the petitioner, Dennis Burrell, be allowed to sue in forma pauperis, and that C. D. Turner be assigned as counsel for said petitioner. This October 12 1893." On October 16, 1894, a summons was issued against the defendant and sureties in the name of Dennis Burrell against John K Hughes et al., and the complaint was subsequently filed in the name of "state, on relation of Dennis Burrell against Hughes et al.": "State of North Carolina, on relation of Dennis Burrell, v. Hughes et al. Amended Complaint. The plaintiff, complaining, alleges: (1) That defendant Hughes was elected sheriff *** in November, 1892, and qualified in December, 1892, after giving bonds required by law, which were accepted and approved by the proper authority. (2) That one of the bonds was a process bond payable to the state of N.C. in the sum of $5,000, with the defendants (naming them) as sureties, conditioned to well and truly execute and due return make of all process to him directed, and in all other things well and truly and faithfully execute the office of sheriff during his continuance therein. (3) That defendant has not well and truly executed and due return made of all process to him directed, in the following particulars: (4) First. At March term, 1893, of this court, there was pending and for trial a criminal action wherein John Crisp and the plaintiff Dennis Burrell were defendants, and about March 11, 1893, the said defendants procured a subpoena to be issued commanding defendant Hughes in due form to summon Claud Hughes, Joseph Smith, and Charles Vincent to appear at said March term, and give evidence in said criminal action on the part of defendants therein. Said subpoena was placed in the hands of said Hughes on or about March 11, 1893, with request to execute same. (5) That defendant failed to serve said subpoena upon Charles Vincent, and made no return as to Vincent, contrary to the statute, etc., whereby he has forfeited to any one who may sue for the same the sum of one hundred dollars. (6) That defendant returned on said subpoena, 'Served on all but Charles Vincent, fee 90c.'; and the plaintiff is informed, and believes, and so alleges, that the return is false in fact, in that the subpoena was served in part through the mail, and by notice sent by parties unknown, and not personally served upon each of said witnesses so commanded to be summoned as required by law, contrary to the statute, etc., whereby defendant has forfeited a sum of one hundred dollars to any one who will sue for the same. (7) That plaintiff is informed and believes that, in addition to the foregoing forfeiture approved as aforesaid, the said return as to Vincent is an insufficient return, within the condition of said bond, in that the said sheriff did not well and truly execute and due return make of said subpoena. (8) That the defendants in the above-mentioned criminal action on or about March 13, 1893, procured another subpoena in due form to be issued, commanding defendant sheriff to summon J. A. Smith and J. W. Pickett to appear at said March term, 1893, to give evidence in said criminal action in behalf of the defendants therein, and the subpoena was placed in defendant sheriff's hands with request to serve same on or about March 13, 1893. (9) That defendant positively failed and refused to serve said subpoena, and the same has been neither served nor returned to the present day, contrary to the statute, etc. Whereby said sheriff has forfeited, to any one who will sue for the same, the sum of one hundred dollars for his failure to execute and due return make of said subpoena for J. A. Smith. That he has forfeited to any one who will sue for the same the sum of one hundred dollars, by reason of his failure to execute and due return make of said subpoena for J. W. Pickett. Wherefore plaintiff prays judgment against defendant and sureties for the sum of five thousand dollars, the penalty of the process bond, to be discharged upon the payment of four...