Dowling v. Winters
| Decision Date | 09 October 1935 |
| Docket Number | No. 165.,165. |
| Citation | 181 S.E. 751,208 N. C. 521 |
| Court | North Carolina Supreme Court |
| Parties | DOWLING. v. WINTERS. |
Appeal from Superior Court, Vance County; Devin, Judge.
Action by Caroline Dowling against J. Charles Winters, executor of the estate of George P. Dowling, deceased. Defendant's motion to quash the summons was allowed, and plaintiff appeals.
Affirmed.
Transitory action brought by nonresident in the superior court of Vance county against personal representative of nonresident decedent to recover damages for alleged negligent injury growing out of automobile accident or collision occurring on public highway in this state.
It appears from the complaint that the plaintiff is a resident of the state of New Jersey; that the defendant is the duly appointed representative of the estate of George P. Dowling, deceased, having qualified as such in the orphans' court of Camden, N. J.; and that the cause of action, upon which plaintiff sues, is one in tort to recover damages for personal injuries alleged to have been caused by defendant's testate, a resident of New Jersey, while operating a motor vehicle on one of the public highways in Vance county, this state.
Service of process was had upon the defendant through the commissioner of revenue as provided by chapter 75, Pub. Laws 1929.
The defendant appeared specially and moved to quash the summons on the ground that he had not been brought into court on any valid and binding service of process. The motion was allowed, and from this ruling, plaintiff appeals, assigning error.
A. A. Bunn, J. H. Bridgers, and J. B. Hicks, all of Henderson, for appellant.
Perry & Kittrell, of Henderson, for appellee.
The plaintiff is a nonresident; the defendant a nonresident executor of a nonresident decedent; the cause of action transitory, growing out of a motor vehicle accident or collision, occurring on a public highway in this state. Plaintiff alleges she was riding as a guest of defendant's testate at the time of the injury.
Is service of summons through the commissioner of revenue, as provided by Code 1931, § 491 (a) for service of process on nonresident operators of motor vehicles on the public highways of this state, sufficient to bring the defendant into court in the instant case so as to confer jurisdiction over the person of the defendant? The answer is: No. Smith v. Haughton, 206 N. C. 587, 174 S. E. 506.
It is provided by the statute in question that a nonresident who accepts the benefits of our laws by operating a motor vehicle on the public highways of this state shall be deemed to have appointed the state commissioner of revenue "his true and lawful attorney upon whom may be served all summonses or other lawful process in any action or proceeding against him, growing out of any accident or collision in...
To continue reading
Request your trial
-
Knoop v. Anderson
...suit'. The rule that death revokes agency is too well settled to require citation of authorities." In the case of Dowling v. Winters, 1935, 208 N.C. 521, 181 S.E. 751, service was attempted upon a foreign executor under the North Carolina Non-Resident Motorist Service Act. The North Carolin......
-
Godwin v. Wachovia Bank & Trust Co., 670
...Fisher v. Southern Loan & Trust Co., 138 N.C. 90, 50 S.E. 592; Citizens Bank v. Grove, 202 N.C. 143, 162 S.E.204; Dowling v. Winters, 208 N.C. 521, 181 S.E. 751; Julian v. Lawton, 240 N.C. 436, 82 S.E.2d The execution of the trust agreement under consideration was not acknowledged as requir......
-
Ewing v. Thompson, 528
...with approval in these cases: Bigham v. Foor, 201 N.C. 14, 158 S.E. 548; Smith v. Haughton, 206 N.C. 587, 174 S.E. 506; Dowling v. Winters, 208 N.C. 521, 181 S.E. 751; Wynn v. Robinson, 216 N.C. 347, 4 S.E.2d 884; Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523; Propst v. Hughes Trucking Co.......
-
Mcleod v. Pearson
...then it would be insufficient under the statute, for only by virtue of C. S. § 881 is substituted service allowable in this way. Dowling v. Winters, supra. There was no request to amend nunc pro tunc, as in Fidelity & Casualty Co. v. Green, 200 N. C. 535, 157 S. E. 797; Calmes v. Lambert, 1......