Sherwood Higgs & Co. v. Sperry & Hutchinson Co.

• Decision Date: 17 October 1905
• Citation: 51 S.E. 1020,139 N.C. 299
• Parties: SHERWOOD HIGGS & CO. v. SPERRY & HUTCHINSON CO.
• Court: North Carolina Supreme Court

51 S.E. 1020

139 N.C. 299

SHERWOOD HIGGS & CO. v. SPERRY & HUTCHINSON CO.

Supreme Court of North Carolina

October 17, 1905

Appeal from Superior Court, Wake County; Moore, Judge.

Action by Sherwood Higgs & Co. against the Sperry & Hutchinson Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

The court, in entering a judgment of dismissal for want of service, should find the facts on which its action is based and not merely that all the facts set out in the several affidavits are true.

In this action summons was issued March 21, 1905, and returned, with the following indorsement thereon: "Received March 22 1905. Served March 22, 1905, by leaving a copy with E. E Anthony, auditor of Sperry & Hutchinson Co."--signed by the sheriff of Guilford county. At the April term, 1905, of the court, the plaintiffs filed their complaint. At the same term counsel for defendant entered a special appearance and moved (1) to set aside the service of summons on E. E Anthony, and (2) to dismiss the action for want of service. The motion was made and heard upon the summons and return thereon and affidavits. Thomas E. Sperry made an affidavit, in which he stated that he was president of the defendant corporation, organized and existing under the laws of the state of New Jersey, having its principal office in New York City; that prior to the 20th day of February, 1905, the company had sold and closed out all of its business in North Carolina, and had not since that day carried on any business therein; that prior to said day said company discharged all of its employés in said state and closed up its business, with the exception of the sum of $175 due to said company from plaintiff; that on the 22d day of March, 1905, said Anthony was transiently in the state of North Carolina; that prior to said day said Anthony had been engaged in inspecting, adjusting, and closing the accounts and books of said company in said state, and prior to said date he had completed said work and reported the conclusion thereof to said company, and been ordered to proceed to Baltimore to make an inspection of the books of said company at that point; that said Anthony is one of the traveling auditors of said company, and his only duties are to inspect and report to the home office the condition of the books, etc., in the various towns in which said company does business; that it is no part of said Anthony's general duty to collect moneys or to enter into contracts on behalf of said company. E. E. Anthony filed an affidavit, substantially of the same import as that of Sperry. He admitted sending a bill to the plaintiffs, containing a statement of their account, asking a remittance of the amount due thereon to him at Greensboro, but denied that he had any authority to collect the same. Plaintiff Sherwood Higgs filed an affidavit, setting forth the receipt of the bill of defendant company on March 19, 1905, with the request that the amount thereof be remitted to said Anthony at Greensboro; that some communication was had with said Anthony over the phone, etc. The complaint was also offered as an affidavit. His honor upon the hearing found that the facts set forth in the affidavits of Sperry, Anthony, and Higgs were true. He did not consider the complaint. The motion was granted, and plaintiff duly excepted and appealed.

Robert C. Strong and C. B. Denson, for appellants.

Shepherd & Shepherd and W. H. Pace, for appellees.

CONNOR J. (after stating the facts).

In this court plaintiffs' counsel insisted that his honor should have considered the complaint upon the motion. While...