Green v. Chrismon, 668.

• Decision Date: 15 December 1943
• Docket Number: No. 668.,668.
• Parties: GREEN. v. CHRISMON et al.
• Court: North Carolina Supreme Court

223 N.C. 723
28 S.E.2d 215

GREEN.
v.
CHRISMON et al.

No. 668.

Supreme Court of North Carolina.

Dec. 15, 1943.

[28 S.E.2d 215]

Appeal from Superior Court, Guilford County; Wm. H. Bobbitt, Judge.

Proceeding by G. E. Green, administrator of the estate of N. J. Chrismon, deceased, for sale of land to pay debts of the estate. From a judgment denying plaintiff's motion and dismissing his petition, as administrator of the estate of Martha Green Chrismon, deceased, widow of N. J. Chrismon, for confirmation of a judgment directing sale of the land and adjudication of the sufficiency of service of summons on defendants, plaintiff appeals.

Affirmed.

J. E. Green, administrator of Martha Green Chrismon, filed petition and motion in the cause for confirmation of the judgment previously rendered in a proceeding between the parties, and for adjudication that the service of the summons on the defendants in that proceeding was sufficient.

The facts pertinent to the issue involved may be summarized as follows: In 1940 G. E. Green, administrator of N. J. Chrismon, filed petition to sell land to make assets to pay debts. The heirs of the intestate were made parties defendant. It was admitted that the summons was issued and delivered to plaintiff for service August 15th, 1940, received by the sheriff September 21st, and served on twenty-four of the defendants September 23rd, 1940. None of the defendants were served within ten days of issuance of summons. No answer was filed or appearance made except by guardian ad litem of two infant defendants. Decree of sale was entered December 2, 1940, and thereafter sale confirmed and deed delivered January 20, 1941. The title of the purchaser at the sale, who was Martha Green Chrismon, and that of her administrator and heirs

[28 S.E.2d 216]

now claiming under her, was thereafter questioned by a prospective purchaser, and thereupon J. E. Green, her administrator and heir, served notice on the defendants to show cause why the original judgment should not be confirmed and the service of summons on them adjudged to have been sufficient. Defendants, answering the motion, alleged that the service was invalid and the order of sale void. From an adverse ruling of the clerk, the defendants appealed to the Judge of the Superior Court who held that the attempted service of the summons on the defendants was a nullity, and that the judgment decreeing the sale was void.

From judgment denying his motion and dismissing his petition, plaintiff, administrator of Martha Green Chrismon, appealed.

Hoyle & Hoyle, of Greensboro, and Glidewell & Glidewell, of Reidsville, for appellant.

Sharp & Sharp, of Reidsville, and Henderson & Henderson, of Greensboro, for appellees.

DEVIN, Justice.

Is the service of a summons on the defendant more than ten days after the date on which it is made returnable sufficient to bring the defendant into court, and to render a judgment by default based thereon valid and binding?

The answer to this question must be sought in the statutes regulating procedure, as interpreted by this court. The matter here brought in question arose in a special proceeding. By C.S. § 753, as amended by Pub.Laws 1939, c. 49, § 2, it is required that special proceedings be commenced by summons, and that the manner of service shall be the same as that prescribed for civil actions. It is by this section provided that the summons shall command the defendant to appear and answer the petition within ten days after service. In civil actions the defendant must appear and answer within thirty days after service. Common to both forms of action is the requirement that the summons be returned by the officer to the clerk. In C.S. § 476, as amended by Chap. 66, Public Laws 1927, is contained this provision: "Summons must be served by the sheriff to whom it is addressed for service within ten days after the date of issue; * * * and, if not served within ten days after date of the issue upon every defendant, must be returned by the officer holding the same for service, to the clerk of the court issuing...