Smith v. Smith

• Decision Date: 17 November 1896
• Citation: 119 N.C. 314,25 S.E. 878
• Court: North Carolina Supreme Court
• Parties: SMITH et al. v. SMITH et al.

25 S.E. 878

119 N.C. 314

SMITH et al.

v.SMITH et al.

Supreme Court of North Carolina.

Nov. 17, 1896.

Case on Appeal—Service.

Under Code Civ. Proc. § 550, providing that the case on appeal shall be served on respondent, without specifying the manner of service, service must be by an officer; service by mail is insufficient.

Appeal from superior court, Columbus county; Green, Judge.

Action by D. T. Smith and others against M. C. Smith and others. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

John D. Bellamy, Jr., and Shepherd & Busbee, for appellants.

J. B. Schulken and Mac-Rae & Day, for appellees.

CLARK, J. The application of the appellants heretofore made for a certiorari to have the case settled by the judge having been denied, they now move to have their case on appeal treated as the proper case on appeal, although service thereof has not been accepted, nor has it been served by an officer, claiming that placing the statement of the case in the mail in time to reach the appellees was due service. They admit that to do so would be to overrule numerous decisions of this court, which they ask us to review for that purpose.

The original Code of Civil Procedure (section 80) provided for service of papers in a cause either personally or by filing in the clerk's office, and section 301 (the original of the present section 550) provided for service of the case and counter case on appeal, "in the manner provided by section 80;" and the same was true of section 349 (now 597), as to serving notices, The inconveniences and manifest evils which arose from thus filing papers which opposite counsel might not see, or might overlook till too late, culminated (after some unpleasant incidents) in a repeal of section 80, and the simple provision in sections 550 and 597 that the statement of the case on appeal and all notices "shall be served" on respondent, etc. Where no other mode of service is provided for, the court held that service must be made by an officer, unless service is accepted according to section 228, for service of summons. Allen v. Strickland, 100 N. C. 225, 6 S. E. 780. That case, it is true, was as to the attempted service of a notice by mail; but the principle applies to all legal papers as to which "service" is prescribed, without indicating any deviation from the ordinary manner of service; and the Code of Civil Procedure (section 597) provides for service of "notices and other papers" in the same manner. Allen v. Strickland has since been followed by Clark v. Manufacturing Co., 110 N. C. Ill, 14 S. E. 518, and State v. Johnson, 109 N. C. 852, 13 S. E. 843 (as to service of notice of appeal when taken out of court), the court saying: "The requirement of service by an officer is not only statutory, but reasonable, as it prevents disputes like this, as to whether there has been service or not;" also in State v. Price, 110 N. C. 599, 15 S. E. 116 (as to the service of the case on appeal), which is followed in Herbin v. Wagoner, 118 N. C. 656, 24 S. E. 490; Porte v. Boone, 114 N. C. 176, 19 S. E. 632; Cummings v. Hoffman, 113 N. C. 267, 18 S. E. 170; McNeill v. Railroad Co., 117 N. C. 642, 23 S. E. 268; Roberts v. Partridge, 118 N. C. 355, 24 S. E. 15; and there...