Mohn v. Cressey

• Decision Date: 20 April 1927
• Docket Number: 154.
• Citation: 137 S.E. 718,193 N.C. 568
• Parties: MOHN v. CRESSEY.
• Court: North Carolina Supreme Court

137 S.E. 718

193 N.C. 568

MOHN v. CRESSEY.

No. 154.

Supreme Court of North Carolina

April 20, 1927

Appeal from Superior Court, Craven County.

Action by N.E. Mohn against Fred L. Cressey and the Farmers' Banking & Trust Company, garnishee, in which the Citizens' National Bank of Boston intervened. After a judgment for the plaintiff in Justice Court, the Superior Court on appeal vacated the attachment and dismissed the action, and plaintiff appeals. Reversed and remanded.

The defendant and the Citizens' National Bank of Boston intervener, entered a special appearance in the court of a justice of the peace, and in the superior court upon appeal and moved to vacate a warrant of attachment and to dismiss the action. At the hearing the judge presiding found the following facts:

(1) The plaintiff, N.E. Mohn, is a resident of Craven county N. C.; the defendants, Fred L. Cressey and Citizens' National Bank of Boston, are residents of Boston, Mass and none of the parties connected with this suit are residents of Craven county except the plaintiff.

(2) On the 29th of December, 1924, plaintiff instituted suit against defendant, Fred L. Cressey, before C.J. Hancock, a justice of the peace of Craven county, N. C., to recover the sum of $191.16 for breach of contract. Summons was issued to Edgecombe county, N. C., but no personal service was made on any defendant except on the garnishee, Farmers' Banking & Trust Company of Tarboro, Edgecombe county, N. C., which process against the garnishee was issued and service made after special appearance and before trial entered by Fred L. Cressey and Citizens' National Bank of Boston.

Upon affidavits filed a writ of attachment was issued to Edgecombe county, and notice of attachment and summons published against defendant, Fred L. Cressey.

The sheriff of Edgecombe county attached a fund of $560 in Farmers' Banking & Trust Company, of Tarboro, N. C., which plaintiff in his affidavit alleged was the property of the defendant Fred L. Cressey, which fund represented proceeds of three drafts with bills of lading drawn by Fred L. Cressey in favor of Citizens' National Bank of Boston, Mass., against L. L. Stancill, of Tarboro, N. C.

(3) When the case came on to be heard before C.J. Hancock, justice of the peace at New Bern, N. C., the defendant, Fred L. Cressey, through counsel, entered a special appearance and moved to vacate the attachment and dismiss the action on the ground of lack of jurisdiction as set out in motion filed, which motion was overruled and defendant Cressey excepted; thereupon defendant, through counsel, requested the court to remove the case for trial, and same was removed for trial to Walter Fulford, justice of the peace of Craven county, N. C.

(4) When the case came on for trial before Walter Fulford, justice of the peace at New Bern, N. C., the Citizens' National Bank of Boston, through counsel, entered a special appearance and moved to vacate attachment and dismiss the action, said bank claiming to be owner of funds attached as purchaser of drafts with bill of lading attached from Fred L. Cressey, for the reason of lack of jurisdiction as set out in the motion filed. Motion was overruled, and Citizens' National Bank of Boston excepted. The court then proceeded to try the case and rendered judgment in favor of plaintiff; both Fred L. Cressey and Citizens' National Bank of Boston excepted and appealed. Counsel for Cressey reserving his special appearance above entered, renewed his special appearance before Fulford, J. P., and also excepted to the judgment.

When the case came on for trial in this court, each defendant, Fred L. Cressey and Citizens' National Bank of Boston, intervener, entered a special appearance and renewed their motion to vacate attachments and dismiss the action for want of jurisdiction for reasons set out in the motions filed.

Upon the foregoing findings of fact judgment was rendered vacating the attachment and dismissing the action. The plaintiff excepted and appealed, assigning error in the judgment.

Service by publication on nonresident is ineffective unless his property is attached.

W. H. Lee, of New Bern, for appellant.

H. P. Whitehurst, of New Bern, for appellee.

T. D. Warren, of New Bern, for Citizens' Nat. Bank of Boston.

ADAMS J.

The basic reason of the motions to dismiss the action is the alleged want of jurisdiction. Fred L. Cressey says: (1) That he is the only defendant, that the summons, which was issued by a justice of the peace in Craven county and addressed to an officer of Edgecombe county, is void, and that the court had no jurisdiction of his person; (2) that no publication of the summons has been made; and (3) that the Farmers' Banking & Trust Company, whose funds were attached, is not a party to the action. The Citizens' National Bank of Boston rests its motion substantially on the ground first above set forth. We understand from the second paragraph of the statement of facts that both the notice of attachment and the service of the summons were "published against the defendant" and that personal service was made on the garnishee, Farmers' Banking & Trust Company, who did not appeal from the judgment. C. S. 819. The mere fact that the appellees entered a special appearance before the garnishee was served did not deprive the magistrate of his authority to continue the cause until service could be made. He ordered a continuance, and the garnishee was served before judgment was rendered or the case was determined. The vital question then, is that of jurisdiction.

It is provided that no process shall be issued by a justice of the peace to any county other than his own, unless one or more bona fide defendants shall reside in and one or more bona fide defendants shall reside outside his county, in which case only he may issue process to any county in which such nonresident defendant resides. C. S. 1489. Hence the justice would have acquired no jurisdiction of the defendant's person by virtue of the summons issued in Craven and addressed to the sheriff, constable, or other lawful officer of Edgecombe, even if it had been personally served in the latter county. "A justice, having no jurisdiction to issue process running out of his county, is confined to the statutory method of acquiring jurisdiction of the person." Rutherford v. Ray, 147 N.C.

253, 61 S.E. 57. But the fact that this summons could not run beyond the limits of Craven county does not necessarily determine the validity or invalidity of the judgment. The original summons dated December 29, 1924, was returnable on January 28, 1925. The officer's return was, "Not to be found in Edgecombe county." The defendant, who was a nonresident of the state, could not be personally served with process; the issuance of the summons on which the return was made was therefore not necessary. A civil action must be commenced by issuing a summons except where the defendant cannot be personally served because he is beyond the reach of process, in which event it may be instituted by affidavit warrant of attachment, and service of summons by publication. In such case the summons is not directed to an officer of any particular county. Best v. Mortgage Co., 128 N.C. 351, 38 S.E. 923; Grocery Co. v. Bag Co., 142 N.C. 174, 55 S.E. 90,...