Morrison v. Lewis

• Decision Date: 17 April 1929
• Docket Number: 382.
• Citation: 147 S.E. 729,197 N.C. 79
• Parties: MORRISON v. LEWIS et al.
• Court: North Carolina Supreme Court

147 S.E. 729

197 N.C. 79

MORRISON v. LEWIS et al.

No. 382.

Supreme Court of North Carolina

April 17, 1929

Appeal from Superior Court, Guilford County; Thomas J. Shaw, Judge.

Action by W. F. Morrison against W. C. Lewis and another. Judgment dismissed the action as to the named defendant, and, on motion of the unnamed defendant, the action against him was removed to Surry county, and plaintiff appeals. Affirmed.

Action is discontinued if summons is not served by return date; no alias being sued out or ordered.

Civil action to recover damages for an alleged negligent injury resulting from a collision between plaintiff's automobile, driven by himself, and a truck, owned by the defendant W. C. Lewis, and operated at the time by his employee, Grover Thompson.

On motion of the defendant W. C. Lewis there was a judgment dismissing the action as to him, for that another suit between the same parties, involving the same subject-matter was pending in Surry county; and, on motion of defendant Grover Thompson, the action against him was removed to Surry county for trial for the convenience of witnesses and to promote the ends of justice.

Plaintiff appeals, assigning error.

King Sapp & King, of Greensboro, for appellant.

J. F Hendren and Wm. M. Allen, both of Elkin, for appellees.

STACY C.J.

The collision between plaintiff's automobile and defendant's truck occurred on September 23, 1927. Suit for damages arising out of said collision was instituted in Surry county by W. C. Lewis against W. F. Morrison November 14, 1927, summons being signed by the clerk on that day, delivered immediately to plaintiff's attorney for delivery to the sheriff, who received it November 22, and duly served same November 28, thereafter. The present suit of W. F. Morrison against W. C. Lewis and Grover Thompson for damages arising out of the same collision was instituted in Guilford county November 21, 1927, summons being delivered to the sheriff November 22, and duly served November 25 thereafter.

The appeal presents the single question as to whether the suit of Lewis v. Morrison was pending in Surry county at the time of the institution of the present action in Guilford county. The trial court held that it was, as summons had been "issued" therein November 14, 1927, and we are disposed to concur in this ruling.

The rationale of our decisions on the subject seems to be that when a summons passes out of the hands of the clerk for service, whether delivered directly to the sheriff or to another for him, and is duly served on or before the day fixed for its return, nothing else appearing, the action is regarded as pending from the time the summons left the clerk's office, under his sanction and authority, for the purpose of being served, McClure v. Fellows, 131 N.C. 509, 42 S.E. 951 (overruled on another point in Peters Grocery Co. v. Collins Bag Co., 142 N.C. 174, 55 S.E. 90, and Jenette v. Hovey, 182 N.C. 30, 108 S.E. 301); Houston v. Thornton, 122 N.C. 365, 29 S.E. 827, 65 Am. St. Rep. 699; Currie v. Hawkins, 118 N.C. 583, 24 S.E. 476; Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912; Pettigrew v. McCoin, 165 N.C. 472, 81 S.E. 701; J. A. Jones Construction Co. v. Hamlet Ice Co., ...