First Nat'l Bank of Charlotte v. Wilson
| Decision Date | 31 January 1879 |
| Citation | 80 N.C. 200 |
| Court | North Carolina Supreme Court |
| Parties | FIRST NATIONAL BANK OF CHARLOTTE v. J. R. WILSON and Sample et alexander. |
OPINION TEXT STARTS HERE
MOTION by defendant Wilson to set aside a judgment, heard at Spring Term, 1878, of MECKLENBURG Superior Court, before Cox, J.
The facts are embodied in the opinion delivered by Mr. Justice DILLARD. The court below vacated the judgment as to Wilson, and the plaintiff appealed.
Messrs. R. Barringer and Shipp & Bailey, for plaintiff .
Messrs. Wilson & Son, for defendant .
This suit was brought to spring term, 1876, of Mecklenburg superior court and a summons issued to the sheriff of Cabarrus county for defendant, J. R. Wilson, was returned endorsed, “Executed 9th May, 1876, by leaving a copy of the summons with the wife of J. R. Wilson,” and at the return term, no appearance being entered by the defendants, judgment by default was taken against all of them for the amount of the note declared on.
The defendant Wilson afterwards, to-wit, on the 23d of March, 1878, moved before His Honor, Judge Schenck to vacate the said judgment and His Honor refused the motion, and in his order suggested that Hon. William R. Cox, then holding the courts of the districts of which Mecklenburg formed a part, was the judge having jurisdiction, and accordingly a new notice was given of a motion before Cox, J., and at spring term, 1878, the papers presented to Judge Schenck, were laid before Judge Cox with some additional affidavits.
His Honor, Judge Cox, on consideration of said motion found as facts that the service on J. R. Wilson was by leaving a copy of the summons with his wife, and that there was no personal service on said Wilson, and thereupon adjudged that the judgment by default be vacated and set aside as to J. R. Wilson, and from the judgment the plaintiff appeals to this court.
At the time of the institution of this suit there were three methods of bringing a party into court--one by service of summons by the sheriff, one by written admission of the party, and the other by publication of the summons. C. C. P., § 89. In the case of a service by the sheriff, it was prescribed that the service should be by delivering a copy of the summons to the defendant personally, and leaving it with him. C. C. P., § 8 (4). This requirement of a delivery of a copy of the summons by the sheriff to the defendant was designed to give him an authentic and fair notice of the commencement of the action and the nature thereof, and to afford him an opportunity to concert and make his defence; and in order to avoid all mistake and surprise on the part of the defendant as to the time and place, when and where he was expected to appear, the statute definitely required that the copy be delivered to the defendant personally.
This is the only method, other than that by publication, of bringing a party into court against his will, and it is essential that it be strictly observed to constitute the case in court and bring the person of the defendant within the jurisdiction of the court, and nothing will supply the place of personal service except the voluntary appearance of the defendant to the action. C. C. P., § 90. From the provisions of the Code we are of opinion that the service of the summons by leaving a copy with the wife of J. R. Wilson was not legal service, and that the court did not thereby acquire jurisdiction to proceed to judgment against him, unless it be that the return of the sheriff may be helped out by proof of the delivery of the copy by the wife to him, and of his verbal recognition of and assent to the service.
Can proof of the delivery of the copy by the wife to J. R. Wilson and of his recognition and verbal assent, make the service sufficient? It is certainly not within the words of the section requiring a personal service by the sheriff,...
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Dunn v. Wilson
...will perforce arise on the further hearing, the following statutes and authorities may prove helpful: C.S. §§ 479 and 489; First Nat. Bank v. Wilson, 80 N.C. 200; v. Monds, 106 N.C. 448, 10 S.E. 1044; Bernhardt v. Brown, 118 N.C. 700, 24 S.E. 527, 715, 36 L.R.A. 402; Williamson v. Cocke, 12......
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Harrell v. Welstead
...corporate defendant had come in by answer, it was not in court at all, and the judgment is without warrant of law as to it. First Nat. Bank v. Wilson, 80 N. C. 200. By the same token or reason that the answer is excluded, the judgment is rendered ineffectual as against the nonappearing defe......
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Harrell v. Welstead
...corporate defendant had come in by answer, it was not in court at all, and the judgment is without warrant of law as to it. First Nat. Bank v. Wilson, 80 N.C. 200. the same token or reason that the answer is excluded, the judgment is rendered ineffectual as against the nonappearing defendan......
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