Williams v. Iron Belt Bldg. & Loan Ass'n

• Decision Date: 11 November 1902
• Citation: 42 S.E. 607,131 N.C. 267
• Court: North Carolina Supreme Court
• Parties: WILLIAMS. v. IRON BELT BUILDING & LOAN ASS'N.

42 S.E. 607

131 N.C. 267

WILLIAMS.

v.IRON BELT BUILDING & LOAN ASS'N.

Supreme Court of North Carolina.

Nov. 11, 1902.

NONRESIDENT CORPORATIONS—SERVICE OF SUMMONS—USURY—ACTION FOR PENALTY—LIMITATIONS.

1. Code, § 874, providing that no justice shall enter a judgment, where one of the defendants is a resident of another county, against a defendant who is a nonresident of his county, unless process was served on him 10 days before the return day, does not apply to a nonresident corporation whose secretary was served in another county, pursuant to Pub. Laws 1901, c. 5; it not having appointed an agent in the state on whom service could be made.

2. Code, § 3836, authorizing an action within two years after payment of usury to recover a penalty, is to be read with section 162, providing that, when the defendant departs from or resides out of the state, the time of his absence shall not be deemed part of the time limited for commencement of the action.

Appeal from superior court, Durham county; Neal, Judge.

Action by A. B. Williams against the Iron Belt Building & Loan Association. Judgment for defendant. Plaintiff appeals. Reversed.

Winston & Foller, for appellant.

Manning & Foushee, for appellee.

CLARK, J. If it be conceded, as defendant claims, that all previous proceedings were discontinued by the failure to issue aliases, this action to recover the penalty for usury, "double the amount of interest paid" (Code, § 3836), began by the issue of a summons by a justice of the peace May 25, 1901. This was served in Durham county upon the secretary of the corporation commission, as provided by chapter 5, Pub. Laws 1901; the defendant being a nonresident corporation doing business here, and not having appointed an agent in this state upon whom service could be made. This summons was returnable May 30, 1901, when the plaintiff obtained judgment for $200. Upon appeal to the superior court, Shaw, Judge, at September term, 1901, set aside the judgment as irregular because summons had not been served 10 days before trial (Code, § 874), and remanded the case to the justice, and the plaintiff's exception was entered on the record. On January 4, 1902, the justice dismissed the action "in deference to the ruling of Judge Shaw, " and plaintiff appealed. On May 30, 1901, the plaintiff began his action in the superior court, alleging the judgment for $200 he had that day obtained before the justice of the peace, as above stated; that the defendant held a mortgage against the plaintiff, claiming a balance due thereon of $150, under which the property had been advertised for sale; asking for a cancellation of the mortgage and an injunction. A restraining order was granted. These two actions were consolidated, and at January term, 1902, a Jury trial being waived by con sent of parties, the facts were found by Neal, Judge, who found, in addition to the above recitals, and sundry matters that are immaterial in the view we have taken, that the defendant had collected usury. It was admitted that the last payment of interest was made January 4, 1898, and that the defendant was then, and has been ever since, a nonresident corporation, upon whom service could not then, nor at any time since, have been made (it having no agent in this state), until the enactment of chapter 5, Pub. Laws 1901, ratified March 15th of that year. His honor, being of opinion that the action was barred, not having been begun within two years from the last payment of interest, decided against the plaintiff, and authorized a sale of plaintiff's property for the balance due under the mortgage.

Code, § 874, on its face, applies only to cases in which a justice's summons has been issued against a defendant residing in another county, and has no application to a case like the present. There was...