Vestal v. Moseley Vending Mach. Exchange

• Decision Date: 30 April 1941
• Docket Number: 526.
• Citation: 14 S.E.2d 427,219 N.C. 468
• Parties: VESTAL v. MOSELEY VENDING MACH. EXCHANGE, Inc., et al.
• Court: North Carolina Supreme Court

14 S.E.2d 427

219 N.C. 468

VESTAL v. MOSELEY VENDING MACH. EXCHANGE, Inc., et al.

No. 526.

Supreme Court of North Carolina

April 30, 1941

Civil action to recover damages for a breach of contract of employment.

That summons was served on the corporate defendant is not challenged. No summons was served on the defendant Moseley, a nonresident.

In the original complaint it is alleged that the corporate defendant is a corporation organized, existing and doing business under the laws of the State of North Carolina and of the laws of the State of Virginia. In an amended complaint it is alleged that said defendant is a North Carolina corporation, has withdrawn from the State of North Carolina and has left no process agent upon whom service can be had.

A writ of attachment was issued and, according to the return of the sheriff, certain debts due the corporate defendant were garnisheed and personal property belonging to the defendants was attached.

A bond for the release of the attached property was filed with the clerk. This bond is signed by the surety but not by the defendants. It is designated as "defendants' bond" and recites the attachment and the fact that certain property belonging to the defendants was attached thereunder. There also appears of record a written agreement under which counsel for plaintiff consented that the "attorneys for the defendant should have additional time within which to answer".

The defendant Moseley appeared specially and moved to dismiss the action for that there has been no service of summons upon him and no property belonging to him personally was attached and that, therefore, the court is without jurisdiction.

The Moseley Vending Machine Exchange, Inc., of North Carolina and the Moseley Vending Machine Exchange, Inc., of Virginia demurred to the complaint "on the grounds that, to-wit for the incapacity of the defendant to be sued, so as to give the court jurisdiction. It appears that on the face of the complaint that said corporation is one organized under the laws of the State of North Carolina and the State of Virginia".

When the cause came on to be heard in the Court below on the special appearance and the demurrer the court found the facts and, upon the facts found, concluded: (1) that defendant Moseley is properly in court; and (2) that the demurrer filed should be overruled. It thereupon entered judgment overruling the demurrer and denying the motion of the defendant Moseley to dismiss. Each defendant excepted and appealed.

H Haywood Robbins, Jr., of Charlotte, for appellants.

Henry L. Strickland, of Charlotte, for appellee.

BARNHILL Justice.

We are unable to determine upon what grounds the corporate defendant bases its contention that it is not subject to suit in the Courts of North Carolina. It contends that there are two separate corporations. Both demurred. If it is a Virginia corporation then the service of the summons under C.S. § 491 and the attachment of its property gives jurisdiction. If it is a North Carolina corporation which has withdrawn from the State and left no process agent within the State, as appears by affidavit, then the service of summons upon the Secretary of State is sufficient. Conceding, however, the want of proper service, defendant has appeared and filed bond. This is equivalent to a general appearance. Bizzell v. Mitchell, 195 N.C. 484, 142 S.E. 706. Likewise, when defendant appeared and filed demurrer it waived any irregularity in the service of summons. In this connection it is to be noted that the demurrer is on behalf of both corporate defendants. The agreement to extend time for filing answer which was filed as a stipulation of record likewise constitutes a general appearance. City...