Clark v. Deloach Mill Manuf'g Co

• Decision Date: 16 February 1892
• Citation: 14 S.E. 518,110 N.C. 111
• Parties: Clark. v. Deloach Mill Manuf'g Co.
• Court: North Carolina Supreme Court

14 S.E. 518

110 N.C. 111

Clark.

v.Deloach Mill Manuf'g Co.

Supreme Court of North Carolina.

Feb. 16, 1892.

Appeal—Notice in Nature op Special Appearance.

Under Code, § 876, giving a defendant who was not personally served with process, and did not appear, in a suit before a justice, the right to appeal from a judgment, on serving notice thereof, such defendant cannot appeal by serving a "limited notice of appeal in the nature of a special appearance."

Appeal from superior court, Craven county; Henry R. Bryan, Judge.

Action by C. C. Clark, Jr., against the Deloach Mill Manufacturing Company. Judgment for plaintiff. Defendant appeals. Appeal dismissed.

The summons was issued in the justice's court on August 7, 1891, and at the same time the affidavit of the plaintiff and warrant of attachment were made, and the said affidavit and an order of publication were entered on August 8th. On the return-day (September 7th) of the notice the plaintiff appeared; the defendant not appearing. Judgment was rendered for plaintiff September 18th. Notice of appeal was served ou the plaintiff and on the justice of the peace. The plaintiff moved in the court below to dismiss the appeal for want of proper notice of appeal, and his honor adjudged that the action be dismissed, and that plaintiff recover his costs. The notice of appeal is as follows: "Take notice that W. D. Mclver, attorney of defendant, entering a special appearance for the purpose of moving a discharge of the attachment granted, and for a dismissal of the action for want of proper service of summons, appeals to the superior court from the judgment rendered on the 7th of September, 1891, in favor of plaintiff, for the sum of, " etc., "$92.13 damages and $6.S0 costs; and this appeal is founded upon the ground that the said judgment is contrary to law and evidence." The said defendant's attorney made affidavit that he served this notice upon the plaintiff and upon the justice of the peace, by delivering a copy thereof to each.

W. D. Mclver, for appellant.

W. W.Clark, for appellee.

Clark, J. The defendant is a non-resident corporation. It was not served with process, and did not appear and answer at the trial before the justice. It had the right to appeal after notice of the judgment. Code, § 876.¹ It appears, however, that the defendant attempted to appeal, not from the judgment generally, but by a limited notice of appeal in the nature of a special appearance. We know of no authority or reason for such practice. An appeal must be from the judgment rendered. If, after the judgment, the defendant, appearing specially for the purposes of the motion, had moved to set aside the judgment for defective publication, and the motion had been denied, an appeal would have carried up only that ruling, (Finlavson v. Association, 109 N. C. 196, 13 8. E. Rep. 739,) or the defendant might have...