Mills v. Housel

• Decision Date: 22 April 1915
• Docket Number: (No. 412.)
• Citation: 85 S.E. 17,168 N.C. 651
• Parties: MILLS. v. HOUSEL.
• Court: North Carolina Supreme Court

85 S.E. 17

168 N.C. 651

MILLS.

v.HOUSEL.

(No. 412.)

Supreme Court of North Carolina.

April 22, 1915.

Appeal from Superior Court, Anson County; Lane, Judge.

Action by Sadie Mills against W. E. Housel. From a judgment of dismissal by the

superior court, on appeal from a justice, plaintiff appeals. Reversed.

Walter E. Brock and Lockhart & Dunlap, all of Wadesboro, for appellant.

Coxe & Taylor, of Wadesboro, for appellee.

CLARK, C. J. This is an action by plaintiff for $50 due her for services as stenographer to the defendant and $5 in stamps used on his correspondence. The summons was issued by a justice of the peace July 10, 1911, returnable September 9th. The defendant having left the state, service was had by attaching property of the defendant ($75 in money) and publication of notice. At the trial before the justice, the defendant entered a special appearance and moved to dismiss the action because it appeared the summons was returnable more than 30 days from the issuance of the same. Revisal, § 1445. This was overruled. The defendant then moved that the attachment be dismissed because the affidavit did not set forth grounds of belief that defendant had left the state in order to defraud the plaintiff. Motion overruled. The defendant then denied the debt, but, upon the evidence, the justice rendered judgment in favor of the plaintiff for $55, and interest from June 28, 1911, and for costs. The defendant appealed.

On the trial in the superior court the defendant entered a special appearance and moved to dismiss the action because the summons issued by the justice was made returnable more than 30 days thereafter, to wit, on September 9, 1911, and further because the warrant of attachment was issued July 10, 1911, but the order of publication of summons was not obtained till August 10, 1911, being more than 30 days after the warrant of attachment was obtained. The motion to dismiss was allowed, and the plaintiff appealed.

The motion to dismiss because the summons was made returnable more than 30 days after its issue (Revisal, § 1445) should have been denied, because, where the service is by attachment of property and publication, no summons is required. Best v. Mortgage Co., 128 N. C. 352, 38 S. E. 923, cited and affirmed by Walker, J., in Grocery Co. v. Bag Co., 142 N. C. 174, 55 S. E. 90; and by Allen, J., in Currie v. Mining Co., 157 N. C. 217, 72 S. E. 980. The defendant further moved to dismiss because the summons by publication was ordered August 10th, being one day more than 30 days after the issuance of the warrant of attachment on July 10th. This motion should have been denied.

1. The court acquired jurisdiction of the action by the service of the attachment upon the property of the defendant. If the notice was not duly served by the publication, it was "error to discharge an attachment, granted as ancillary to an action, because of the insufficiency of the affidavit toobtain service of the summons by publication, for it is possible that the defect may be cured by amendment." Branch v. Prank, 81 N. C. 180. The remedy is not to dismiss the attachment, but by ordering a republication, for, as the defendant is a nonresident, to dismiss the attachment may deprive the plaintiff of all remedy by the removal of the property before a new proceeding and attachment can be had. Price v. Cox, 83 N. C. 261; Penniman v. Daniel, 93 N. C. 332. In Finch v. Slater, 152 N. C. 156, 67 S. E. 264, it is held that, where the court has acquired jurisdiction by attachment of property, the time for serving summons by publication, when it has not been properly made, can be extended in the discretion of the court

2. Revisal § 762, requires that personal service of the summons must be made "within 30 days after the attachment granted"; but, when personal service cannot be...