S. Lowman & Co v. Ballard

• Decision Date: 13 January 1915
• Docket Number: (No. 409.)
• Citation: 84 S.E. 21,168 N.C. 16
• Court: North Carolina Supreme Court
• Parties: S. LOWMAN & CO. v. BALLARD.

84 S.E. 21

168 N.C. 16

S. LOWMAN & CO.

v.BALLARD.

(No. 409.)

Supreme Court of North Carolina.

Jan. 13, 1915.

Clark, C. J., and Allen, J., dissenting.

Appeal from Superior Court, Anson County; Shaw, Judge.

Action by S. Lowman & Co. against T. J. Ballard. Judgment having been rendered against defendant by default before a justice of the peace, and an order denying a motion to set it aside having been affirmed on appeal to the superior court, defendant appeals. Reversed.

On the hearing, it appeared that in 1911 plaintiff Instituted an action on account against defendant, before a justice of the peace in said county, and on March 16, 1911, recovered judgment for $173.75, defendant not appealing at this time; that defendant instituted a civil action against plaintiff to set aside said judgment, claiming that he owed plaintiff nothing, and that he had never been served with summons in said cause, and for many months after its rendition he had no notice or knowledge of the existence of the judgment or of any suit against him by plaintiff. Judgment in that cause was entered in favor of the present plaintiff, and on appeal judgment was affirmed, the court being of opinion that, on the facts presented in that record, defendant could only proceed by motion before the justice to set aside the judgment. See Ballard v. Lowry, 163 N. C. 487, 79 S. E. 966. Pursuant to that intimation, defendant, on notice duly served, made the present motion to set aside the judgment before the justice, J. H. Benton, Esq., and on the ground, among others, that the summons in the action had been originally served by telephone, the sheriff being at Wadesboro and defendant at Morven, nine miles distant. On the hearing the justice found that the sheriff had "read the summons by telephone to defendant and, recognizing that it was defendant by conversation had between them at the time, he had made the return on the process served, " etc. The justice, being of opinion that there had been a valid service, refused to set aside the judgment, and on appeal to superior court, this ruling was affirmed, the material portion of his honor's judgment being as follows:

"The court finds as a fact that J. T. Short was a deputy sheriff of Anson county on the 27th day of February, 1911, and read the summons issued in said cause by said justice of the peace to the defendant, T. J. Ballard, over the telephone line connecting Wadesboro and Morven, and that the said deputy sheriff was well acquainted with said defendant, and recognized his voice over the telephone in the conversation between them at said time, whereupon said deputy sheriff made the return and indorsement upon the summons. Upon these facts the court finds that, as a matter of law, said service and reading of said summons over the telephone was a legal and valid service of said summons, and the court so holds. From this judgment, the defendant excepts and appeals to the Supreme Court."

Lockhart & Dunlap, of Wadesboro, for appellant.

Gulledge & Boggan, of Wadesboro, for appellee.

HOKE, J. [1] On the facts appearing of record, and in like case whenever the remedy is available to him, the procedure open to defendant is by motion before the justice who tried the cause. This was virtually held on a former appeal between the parties (163 N. C. 487, 79 S. E. 966), and the position is in accord with our decisions on the subject (Thompson v. Notion Co., 160 N. C. 519, 76 S. E. 470; Clark v. Mfg. Co., 110 N. C. 111, 14 S. E. 518; Whitehurst v. Transportation Co., 109 N. C. 342, 13 S. E. 937; McKee v. Angel, 90 N. C. 60).

In Thompson v. Notion Co., supra, that being a case where service had been regularly made by publication and defendant had neither appeared nor answered, the decision was made to rest on section 1491 of Revisal, which allowed an appeal to be taken in such cases within 15 days after personal notice of the rendition of the judgment, but Associate Justice Allen, in his well-considered opinion, is careful to note that, in case of "defective process, or where there is the appearance of service when in fact there was none, the remedy by motion before the justice is properly available." Both in the superior and justice's courts the statutory limits, as to time within which motion of this character shall be made are cases where the proceedings are, in all respects, regular and do not apply in cases when there is defective service of process or an entire absence ofit. Massie v. Hainey, 165 N. C. 174, 81 S. E. 135; McKee v. Angel, 90 N. C. 60, supra. Authority here is also to the effect that, where a statute provides for service of summons or notices in the progress of a cause by certain persons or by designated methods, the specified requirements must be complied with or there is no valid service. Martin v. Buffaloe, 128 N. C. 305, 38 S. E. 902, 83 Am. St. Rep. 679; Smith v. Smith, 119 N. C. 314, 25 S. E. 878; Allen v. Strickland, 100 N. C. 225, 6 S. E. 780; McKee v. Angel, supra.

This, then, being proper procedure, and the only service of the original process in this cause having been by means of the telephone, "the sheriff being at Wadesboro and defendant at Morven, nine miles distant, " the question chiefly and directly presented by this appeal is whether, in this jurisdiction, there can be a valid service of original process by means of the telephone. Our statute on the subject (Revisal, § 439) provides that the summons "shall be served, in all cases except as hereinafter provided, by the sheriff or other officer reading the same to the party or parties named as defendant, and such reading shall be a legal and sufficient service." This method of serving process was established by the Legislature of 1876 and 1877, and at the time the telephone its a general system of communication was not in existence. An interesting account of its origin and development will be found in 126 U. S. Reports (8 Sup. Ct. 778, 31 L. Ed. 863), the volume being devoted to a proper report of the telephone cases, from which it appears that the patents were applied for in 1876; that the litigation concerning them was continued for something over 11 years, and it was not until 1887 that decision was made declaring the rights in dispute to be in Prof. Bell and his associates, and although the active development of the system was immediately and successfully entered upon, the telephone, as now operated, did not come into very general use and application until about the beginning of the present century, or a short period preceding that date.

At the time, therefore, when this legislation was enacted, the only method of service contemplated or provided for was by reading the summons in the personal presence of the party, and we are of opinion that this is and should continue to be the correct interpretation of the statute, as it is now written. This service of original process by which courts of justice acquire jurisdiction over the rights of person and of property of the citizen has always been, and properly, regulated with circumspect care. In the Code of 1868, it could only be done by leaving a copy of the summons under the court seal; later, in 1876 and 1877, the seal was omitted when the process ran to the county of the officer who issued it, and at the same session a service by reading by the sheriff or some officer was established; both of these chang es, it will be noted, being by legislative enactment. And this method of service, by reading in the personal presence of the party, affording as it does to the sheriff a more satisfactory and certain means of identifying the person on whom the service is made and giving assurance to the litigant of the true import of the act by present exhibition of the process, giving him better opportunity, too, to ascertain the position and authority of the officer and being the method contemplated and described by the statute at the time it was passed, and the only one recognized and pursued for 20 years thereafter, should not be altered, if at all, save by express provision of the statute law.

The only valid objection to be made to this position is that it may, at times, make for inconvenience of the officer, but even as to him the proposed change is of doubtful benefit. We know that a sheriff, or other officer having a process of this character in charge, is properly held to a strict account as to the verity of the service. If he makes a false return, he and his bondsmen may be subjected to serious penalties, and, looked at only from the officer's point of view, there is grave question if in the effort to perform this important duty he should be subjected to the additional uncertainties, sure to arise by recognizing the proposed manner of service.

On authority the question does not seem to have been very much discussed in the courts. The nearest case we have been able to find on the subject is in Ex parte Terrell, Court of Criminal Appeals of Texas, reported in 95 S. W. 536. That case was an attachment for contempt against a defaulting witness, their statute requiring service of subpoena by "reading same in the hearing of the witness, " and it was held that service by telephone was no valid service, and the position derives some support in a New York case of Gilpin v. Savage, 201 N. T. 167, 94 N. E. 656, 34 L. R. A. (N. S.) 417, Ann. Cas. 1912A, 861, to the effect that presentment of a note and demand for payment must be by actual exhibit of the instrument, and that a demand made by telephone was insufficient We are aware that, in a number of cases, it has been held that, under regulations requiring service of notices to be in writing, service by means of a telegram, written out by the agent and delivered, has been upheld, but these were generally in...