Durham Fertilizer Co v. Marsh-burn

• Decision Date: 22 March 1898
• Citation: 122 N.C. 411,29 S.E. 411
• Court: North Carolina Supreme Court
• Parties: DURHAM FERTILIZER CO. v. MARSH-BURN et al.

29 S.E. 411

122 N.C. 411

DURHAM FERTILIZER CO.

v.MARSH-BURN et al.

Supreme Court of North Carolina.

March 22, 1898.

Appealable Orders—Jurisdictional Questions —Justices op the Peace—Process—Judgment—Appeals to Superior Court.

1. An order overruling a motion to dismiss an appeal from justice court is not appealable, and hence it should be excepted to.

2. A motion to dismiss an appeal from a justice of the peace, based on want of proper service of process, raises a jurisdictional question, which may be raised at any time and in any court where the cause is pending.

3. Since the constitution provides that, in a matter of exclusive original jurisdiction in justice's court, the superior court has jurisdiction only by appeal, where the justice did not have jurisdiction of a party, the superior court cannot obtain it on appeal from the justice court, by ordering a summons to issue to bring the party before it.

4. Code, § 871, providing that a justice "may issue process to any county in which any such nonresident defendant resides, " requires that such process shall be issued or addressed to the officers of the county where it is to be served, the officers of one county not being authorized to serve process in another.

5. A summons from a justice court, improperly issued and improperly served, does not bring a defendant into court, and hence the justice has no right to give judgment against such defendant.

6. A judgment rendered by a justice of the peace against a nonresident defendant in defiance of Code, § 874, which forbids any justice from giving judgment against any nonresident defendant, unless process was served on him at least 10 days before the return day, cannot be sustained.

Appeal from superior court, Duplin county; Robinson, Judge.

Action by the Durham Fertilizer Company against J. M. Marshburn and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Stevens & Beasley, for appellant.

John D. Kerr, for appellees.

FURCHES, J. This action was commenced before a justice of the peace of Duplin county. A part of the defendants named in the summons lived in Duplin county, and a part of them in Sampson county. The summons was directed to "any constable or other lawful officer of Duplin county." This summons was duly served on the defendants living in Duplin, but not on those living in Sampson. Upon the return of the summons, indorsed as above indicated, the case was continued to the 24th day of November, 1894, and an alias summons was issued by Woodward, the justice of the peace of Duplin, directed, as the original was, to "any constable or other lawful officer of Duplin county." This duplicate was issued on the 19th of November, and on the 20th Warren Johnson, a justice of the peace of Sampson county, being satisfied that Woodward, who issued the summons, was a justice of the peace of Duplin, indorsed it under section 872 of the Code, and the sheriff of Sampson served the same on the 23d of November, and returned it to Woodward, in Duplin. The Sampson defendants, by an attorney, appeared before Woodward on the 24th, and entered a special appearance, and moved to dismiss as to them. This motion was refused, and the justice proceeded to judgment, and the said defendants appealed to the superior court In the superior court the said defendants again entered a special appearance, and moved to dismiss. This motion was refused, and the court ordered the clerk of the superior court of Duplin to issue a summons for these defendants to Sampson, which was done, and served on said defendants. At the next term these defendants again renewed their motion to dismiss, which was allowed, and the plaintiff appealed.

It was contended here, In support of the plaintiff's appeal, that the original service was sufficient; if not, the service of the summons ordered by the court was; and that the defendants were estopped by their motion at the previous term of the court to dismiss; that it was res judicata. The last position taken by the plaintiff would probably have to be sustained, as the defendants seem not to have noted an exception. This was all the defendants could have done, as it was not such a judgment...