Moore v. North Carolina R.R. Co.

• Decision Date: 30 June 1872
• Citation: Moore v. North Carolina R.R. Co., 67 N.C. 209 (N.C. 1872)
• Parties: W. P. MOORE v. THE N. C. RAILROAD COMPANY.
• Court: North Carolina Supreme Court

67 N.C. 209

W. P. MOORE

v.THE N. C. RAILROAD COMPANY.

Supreme Court of North Carolina.

June Term, 1872.

The Clerk of the Superior Court of one County has no right to issue a summons returnable to the Superior Court of another County; but irregularity of service is waived by an appearance and answer in bar.

[ Howerton v. Tate, 66 N. C. R. 431.]

Motion to dimiss a civil suit, heard before Logan, J., at the Superior Court of CABARRUS, Spring Term, 1872.

The plaintiff sued out a summons from the Clerk of the Superior Court of Mecklenburg County, against the defendant, returnable to Spring Term, 1870, of Cabarrus Superior Court. The summons was returned “executed.” Plaintiff filed a complaint at the appearance term, and at the same term the defendant answered in bar of the action. At Spring Term, 1872, a motion to dismiss was made by the defendant's counsel, upon the ground that the clerk of Mecklenburg had no power to issue a summons returnable to Cabarrus Superior Court. It was agreed that plaintiff lived in Craven, and that defendant was a corporation, extending through and doing business in the Counties of Mecklenburg and Cabarrus. His Honor allowed the motion and dismissed the suit. From which judgment plaintiff appealed to the Supreme Court.

J. E. Brown and Wilson, for plaintiff .

C. Dowd and Barringer, for defendant .

RODMAN, J.

The Clerk of the Superior Court of Mecklenburg has no right to issue a summons returnable to the Superior Court of Cabarrus. Howerton v. Tate 66 N. C. 431; Acts, 1868-'9, ch. 76, sec. 2.

The defendant nevertheless appeared and answered in bar. We are of opinion that the irregularity was thereby waived. If no...