Pass v. Elias

• Decision Date: 10 November 1926
• Docket Number: (No. 389.)
• Citation: 135 S.E. 291
• Court: North Carolina Supreme Court
• Parties: PASS v. ELIAS.

135 S.E. 291

(192 N.C. 497)

PASS

v.ELIAS.

(No. 389.)

Supreme Court of North Carolina.

Nov. 10, 1926.

Appeal from Superior Court, Guilford County; Webb, Judge.

Action by Joe Pass against Mary Elias. Judgment for plaintiff, and defendant appeals. Reversed.

On the 17th day of April, 1925, the plaintiff instituted an action before a justice of the peace to recover of the defendant the sum of $18. The return upon the summons is in these words:

"Received April 24, 1925. Served April 24, 1925, by reading the within summons to Alary Elias. D. B. Stafford, S., E. B. Ballinger, D. S."

The defendant, through her counsel, made a special appearance in the court of a justice of the peace for the purpose of dismissing the action, for the reason that the summons had not been properly served upon defendant. The justice of the peace denied the motion and proceeded to judgment. The defendant appealed to the superior court, properly protecting all rights, and in the superior court made a special appearance to dismiss for the reason given in the magistrate's court. The motion was overruled, and the case proceeded to trial over the objection of defendant, resulting in a verdict in favor of plaintiff and against the defendant for the said sum of $18. Whereupon the defendant appealed.

Thomas J. Hill, of Greensboro, for appellant.

BROGDEN, J. The question is this: Must the summons in the court of a justice of the peace be served by delivering a copy to the defendant?

C. S. vol. 3, § 479, provides that:

"The officer to whom the summons is addressed must note on it the day of its delivery to him, serve it by delivering a copy thereof to each of the defendants, and return it within the time specified therein for its return, " etc.

C. S. § 1500, 'rule 16, provides:

"The chapter on Civil Procedure, respecting forms of actions, parties to actions, the times of commencing actions, and the service of process, shall apply to justices' courts."

C. S. § 1487, provides for the issuance and form of a summons and the return date in the courts of a justice of the peace. C. S. § 1488, provides that the officer to whom the summons is delivered shall return the same within five days after its receipt. But neither of these statutes provides a method of serving the process, except the method prescribed in the chapter on Civil Procedure. Indeed, before the passage of the New Practice Acts, a summons issued by a justice of the peace against a corporation required that service should be made by...