Isley v. Boon
| Decision Date | 31 October 1893 |
| Citation | 18 S.E. 174,113 N.C. 249 |
| Parties | ISLEY v. BOON et ux. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Alamance county; Bryan, Judge.
Action by Christian Isley against Rowena Boon and John Boon for the recovery of real estate. From a judgment in defendants' favor, plaintiff appeals. Reversed.
In a collateral attack on a judgment in a special proceeding ordering the sale of an intestate's land, the sheriff's return, showing a proper service on the heirs is conclusive.
L. M Scott, J. E. Boyd, and C. E. McLean, for appellant.
J. T Morehead and W. P. Bynum, Jr., for appellees.
The plaintiff claims the land in controversy through one John Ireland, who purchased the same at a sale made by E. S Parker, administrator of Samuel Adams, pursuant to a decree in a special proceeding granting to the said administrator license to sell the land of said Adams for the purpose of creating assets to pay the indebtedness of his intestate. The plaintiff introduced a part of the record in the said proceeding, and, under a ruling in this case on a former appeal, (109 N.C. 555, 13 S.E. Rep. 795,) was permitted to prove by parol evidence such other parts thereof as were lost, and could not, after proper and diligent search, be found in their legal depository. That part of the record which had not been lost consisted of a summons dated November 27, 1875, which was returned, under the signature of the sheriff, in these words: The docket of the clerk was also introduced, which showed the following entries: The defendant Rowena, who is an heir of the said Samuel Adams, contends that it does not appear from said return that she was properly served, and she insists that she can, in this action, collaterally attack the decree in the special proceeding, and thus defeat the title of the plaintiff, who, as we have stated, claims under John Ireland, who was not a party to the said proceeding, and does not appear to have had any notice of the alleged absence of service on the said Rowena.
It was undoubtedly necessary, in order to confer jurisdiction, that the summons should have been served, and, at the time of the commencement of the above-mentioned proceeding, the method of service was by the delivery of a copy of the summons to the defendant, personally. Battle, Revisal, c. 17, § 82. The courts have been very liberal in construing the returns of sheriffs, and in Alabama it was held that the word "Executed" was sufficient; the court saying that the word itself implies that the writ has been executed according to law. Mayfield v. Allen, 1 Minor, 274. The like ruling has been made in Virginia and Kentucky, the courts holding "that the word 'Executed,"' ex vi termini, carries with it the idea of a full performance of all that the law requires. Com. v. Murray, 2 Va Cas. 504; Bridges v. Ridgley, 2 Litt. 395. This principle is of very general application, except in those states where, by statute, alternative modes of serving process have been adopted, in which instances a much more stringent doctrine is held, and it is required that the return must show, not only that the process has been served, but which one of two or more statutory modes of bringing a defendant before the court has been adopted by the officer. It was in reference to provisions of this nature that some of the cases cited by defendants' counsel were decided. In this state, there was but one mode of service provided by law, and the principle referred to has been explicitly recognized by the court in Strayhorn v. Blalock, 92 N.C. 292. At that time the statute required that the summons should be served by reading the same to the defendant, (Code, § 214,) and the court held that the return of the...
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