Forte v. Boone

• Decision Date: 01 May 1894
• Citation: 19 S.E. 632,114 N.C. 176
• Parties: FORTE et al. v. BOONE et al.
• Court: North Carolina Supreme Court

19 S.E. 632

114 N.C. 176

FORTE et al. v. BOONE et al.

Supreme Court of North Carolina

May 1, 1894

Appeal from superior court, Northampton county; W. A. Hoke, Judge.

Action by Elias Forte and others, relators, against James D. Boone and others, on bonds of said Boone as clerk of the superior court. Judgment for plaintiffs. Defendants appeal. Affirmed.

In an action on the bond of a clerk of court, a summons in the name of F. may be amended to "State on Relation of F."--

R. B Peebles, for appellants.

C. G Peebles, for appellees.

CLARK J.

The appellants' case on appeal, unless service was accepted could be served only by an officer. Allen v. Strickland, 100 N.C. 225, 6 S.E. 780; State v. Johnson, 109 N.C. 852, 13 S.E. 843; Clark v. Manufacturing Co., 110 N.C. 113, 14 S.E. 518; Code, § 597. "Service by an officer" means an officer authorized generally, and by virtue of his office, to serve process of the court in which the action was determined. The service here was made by a constable, and was a nullity. Code, § 3810, must be construed with section 644; ^[1] and by them a town constable is given no authority to serve any papers for the superior court, except process, and that only when expressly directed to him by the court. This does not embrace the case on appeal. This was not process, nor was it directed to him by any court. The action of the judge in thereafter settling the case cannot cure the failure to serve appellants' case upon appellees legally, and in due time. There being no valid case on appeal before us, we are restricted to errors apparent upon the record proper. Lyman v. Ramseur, 113 N.C. 503, 18 S.E. 690. There being none, the judgment must be affirmed.

We may note, however, that the exception that the judge allowed the summons to be amended by adding the words "State, on Relation of," before the name of plaintiffs, was not error. Maggett v. Roberts, 108 N.C. 174, 12 S.E. 890. It might have even been allowed after verdict ( State v. Mitchell, 102 N.C. 347, 9 S.E. 702), or, indeed, in this court (Hodge v. Railroad Co., 108 N.C. 24, 26, 12 S.E. 1041; Grant v. Rogers, 94 N.C. 755; Tyrrel v. Simmons, 48 N.C. 187; Code, § 965). Nor is there any ground for exception to the issues. Humphrey v. Board, 109 N.C. 137, 13 S.E. 793, and cases cited. The judgment is affirmed.

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Notes:

^[1] Code, § 644, requires constables to execute all notices tendered in commencement or prosecution of any cause before a justice of the peace. Section 3810 permits city and town...