Mintz v. Frink

• Decision Date: 02 February 1940
• Docket Number: 594.
• Citation: 6 S.E.2d 804,217 N.C. 101
• Parties: MINTZ v. FRINK.
• Court: North Carolina Supreme Court

6 S.E.2d 804

217 N.C. 101

MINTZ v. FRINK.

No. 594.

Supreme Court of North Carolina

February 2, 1940

Civil action to recover damages for alleged slander.

Summons in this action, issued November 26, 1938, was returned with endorsement showing service was made upon defendant on the same date.

On December 12, 1938, defendant, after notice to attorneys for plaintiff, entered special appearance and moved to dismiss the action for that the summons was served on Sunday November 27, 1938, contrary to law, and for that cost bond is not justified by the surety as required by the statute, and there is no order authorizing the plaintiff to sue without giving bond.

Upon the hearing of the motion at January Term, 1939, Harris, J finding as a fact from the affidavits filed that the summons was served on Sunday, November 27, 1938, held that such service is a nullity, and ordered the return to be stricken out; and, upon plaintiff's motion for an alias summons the court then ordered that the case be remanded to the clerk of superior court, and that he be, and is authorized to serve immediately an alias summons with an attached copy of the complaint; and further ordered that plaintiff give a justified cost bond within ten days or the action is dismissed. Defendant excepted to the order for alias summons and to the refusal to dismiss the action.

Thereafter on January 12, 1939, "in compliance with" the said order, the assistant clerk of superior court issued a summons in form of an original summons, but marked at the top: "Alias Summons", which was returned by the sheriff endorsed "served January 13, 1939, by delivering a copy of the within summons and a copy of the complaint" to defendant.

Subsequently, on February 7, 1939, defendant, again after notice to attorneys for plaintiff, entered special appearance and moved to dismiss the action and to strike out the officer's return on the summons marked "Alias Summons" and dated January 12, 1939, for that there was no complaint filed for that suit, and there was no order extending the time for filing the complaint, and there was no cost bond filed, and for that the same is not an alias summons. Upon hearing of the motion on March 4, 1939, the clerk, upon finding that the summons issued on January 12, 1939, was in compliance with the order of Harris, J., and being of opinion that same is a valid alias summons, denied the motion to dismiss. Plaintiff excepted and appealed to superior court.

Upon such appeal, heard at September Civil Term, 1939, and upon finding as fact that the summons marked "Alias Summons" issued by the clerk on January 12, 1939 was not in fact an alias summons, and that same was actually served upon the defendant without a copy of the complaint, the Court, being of opinion that such summons so marked and served is inoperative, but being further of opinion that the court has "inherent right to correct its mistakes and errors", denied motion of defendant to dismiss the action, and ordered that the cause be remanded to the clerk of superior court with direction to him to issue at once an alias summons and attach thereto copy of complaint for service on defendant.

Defendant appeals therefrom to the Supreme Court, and assigns error.

E. K. Bryan, of Wilmington, for plaintiff appellee.

S. B. Frink, of Southport, and I. C. Wright, of Wilmington, for defendant appellant.

WINBORNE Justice.

The questions involved on this appeal are these:

(1) Is service of summons on Sunday valid? (2) Does marking an original summons "alias" constitute it an alias summons? (3) When summons has been served on defendant on Sunday and when alias summons has not been issued within the time limited by statute, is defendant, by motion made on special appearance, entitled to have the action dismissed for want of jurisdiction of person? (4) When defendant enters an appearance, designated special, and moves to dismiss the action not only for invalid service of summons, that is, want of jurisdiction of person, but also for lack of justification of plaintiff's bond as security for costs, is the appearance general or special?

The law as established in this State answers the first and second questions in the negative, and the third in the affirmative. While as to the fourth the exact question has not been considered heretofore in this State, the rule of reason prompts us to hold the appearance is not general.

(1) The statute, C.S. § 3958, provides that "It shall not be lawful for any sheriff, constable, or other officer to execute any summons, capias, or other process on Sunday, unless the same be issued for treason, felony or misdemeanor". See Bland v. Whitfield, 46 N.C. 122; Devries v. Summit, 86 N.C. 126. Hence in the present action service of original summons on Sunday is invalid and not binding on defendant. Having been so adjudged and the return having been stricken out at January Term, 1939, the status of the process was the same as if service had not been made. Hatch v. Alamance R. Co., 183 N.C. 617, 112 S.E. 529. The plaintiff then had the right, given by statute, C.S. § 480, to "sue out an alias *** summons, returnable in the same manner as original process",--a right which could and must have been exercised at any time within ninety days next after the date of the original summons, November 26, 1938. McGuire v. Montvale Lbr. Co., 190 N.C. 806, 131 S.E. 274.

(2) In order to preserve a continuous single action referable to the date of its institution the original ineffective summons must be followed by process successively and properly issued. Hatch v. Alamance R. Co., supra, and McGuire v. Montvale Lbr. Co., supra, and cases cited. An alias follows next after the original. There should be something in the body of the second summons to indicate its alleged relation to the original. Hatch v. Alamance R. Co., supra. The character of process purporting to be original is not changed by an endorsement of the word "alias". Such endorsement forms no part of the record, and could not have the effect of changing the tenor from an original to an alias summons. See Simpson v. Simpson, 64 N.C. 427, as applied to executions. The issuance of a second summons in the form of an original, without something in the body of it to indicate its relation to the original, has the force and effect of initiating an independent action.

(3) Section 481 of Consolidated Statutes of 1919 provides that "A failure to keep up the chain of summonses issued against a party, not served, by means of an alias or pluries summons,...