White v. Underwood

• Decision Date: 10 October 1899
• Citation: 125 N.C. 25,34 S.E. 104
• Parties: WHITE. v. UNDERWOOD.
• Court: North Carolina Supreme Court

34 S.E. 104

125 N.C. 25

WHITE.

v.UNDERWOOD.

Supreme Court of North Carolina.

Oct. 10, 1899.

PROCESS—SERVICE ON ONE CONFINED ON CRIMINAL CHARGE.

Confinement in jail on a criminal charge does not protect defendant against service of process in a civil action, and the prosecution of the same to judgment.

Appeal from superior court, Hertford county; Bowman, Judge.

Action by B. P. White against William Underwood. Defendant appeared specially, and moved to vacate the order of arrest and bail issued by the clerk. The motion was sustained, and plaintiff appeals. Reversed.

Winborne & Lawrence, for appellant.

D. C. Barnes, for appellee.

CLARK, J. The summons in this action, and an order of arrest and bail ancillary thereto, were served upon the defendant while confined in jail, upon failure to give bond for his appearance to answer a criminal charge for some secret assault. Code, § 131. The sheriff has authority to serve process anywhere in his county, in jail as well as elsewhere. The jail possesses no "privilege of sanctuary." The reason for the exemption of witnesses and jurors from civil arrest (Code, §§ 13G7, 1735) and of nonresident parties and witnesses voluntarily attending court here from service of any civil process (Cooper v. Wyman, 122 N. C. 784, 29 S. E. 947) does not apply to parties arrested in criminal proceeding (Moore v. Green, 73 N. C. 394). There is no public policy to encourage the latter. In Davis v. Duffie, 1 Abb. Dec. 486, it is said by the court of appeals of New York, affirming same case in 8 Bosw. 617: "It was decided in Phelps v. Phelps, 7 Paige, 150, that service upon a convict in a state prison, as in this case, was regular and valid to confer jurisdiction; and this has been the settled rule of law and practice, both in England and in this country, for a long period of time. 2 Madd. Ch. Prac. 200; 1 Hoff. Ch. Prac. 109; 1 Barb. Ch. Prac. 50. Even if Davis could be deemed civilly dead, as would have been his condition had he been sentenced to imprisonment for life (2 Rev. St. p. 701, § 20), still he would have been answerable to his creditors according to the usual practice of the courts. Chitty says: 'This situation of civiliter mortuus is never allowed to protect him from the claims of private individuals or the necessities of public justice; so that, although he can bring no action against another, he maybe sued, and execution taken out against him.' See, also, remarks of Chancellor Kent in Platner v. Sherwood, 6 Johns. Ch. 130. ...