Woodard v. Tri-state Milling Co

• Decision Date: 25 September 1906
• Citation: 55 S.E. 70,142 N.C. 100
• Court: North Carolina Supreme Court
• Parties: WOODARD & WOODARD . v. TRI-STATE MILLING CO.

55 S.E. 70

142 N.C. 100

WOODARD & WOODARD .

v.TRI-STATE MILLING CO.

Supreme Court of North Carolina.

Sept. 25, 1906.

1. Appearance — Jurisdiction — Waiver — Agreement.

An agreement bv the counsel for defendant that a case brought before a justice of the peace should be heard before the justice on a day subsequent to the return day, entered into prior to the return day, is not a general appearance, and defendant may object to the insufficiency of the service of process.

2. Same—Special Appearance.

The appearance of an attorney for the sole purpose of moving to dismiss the action for irregularities in the proceedings is a special appearance and the right to dismiss may be insisted on.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appearance, § 47.]

3. Appeal—Waiver of Objections—Motion to Dismiss.

Where, on a special appearance, a motion to dismiss an action for irregularities in the proceedings is denied, defendant may proceed with the trial without thereby losing his right to have the ruling reviewed by an appellate court.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3612.]

Appeal from Superior Court, Edgecombe County; E. B. Jones, Judge.

Action by Woodard & Woodard against the Tri-State Milling Company. From an order of the superior court dismissing an appeal from a judgment of a justice of the peace, plaintiff appeals. Affirmed.

This action was commenced in the court of a Justice of the peace, and, on appeal, was dismissed. The following are the findings of the superior court, his honor, Judge Jones, presiding:

"(1) That summons was duly issued by the justice of the peace on the 22d day of March, 1904, returnable on the 25th day of March, 1904, and the same was returned on the return day thereof by the constable with the indorsement 'Defendant not to be found in the county.' (2) There was no affidavit sufficient to order the publication of the service of the summons, nor was there any order directing the publication of the summons, nor is there any record showing there was a publication of the summons, and warrant of attachment in the papers. (3) I find that the defendant's attorney by correspondence, agreed with the plaintiff's attorney that the matter should be continued from April 23, 1904, and come up for hearing on the 13th day of May, 1904, at Whitakers, N. C. (5) That at the beginning of the trial on the 13th day of May, 1904, W. O. Howard, attorney for the defendants, moved to dismiss the action for irregularities in the proceedings, which motion was overruled and the cause proceeded with. (5) There was no personal service nor was there service by publication, but it was admitted that there was attempted service by publication returnable April 23, 1904."

From the order of the superior court, plaintiff appealed.

G. M. T. Fountain, for appellant.

W. O. Howard, for appellee.

BROWN, J. The counsel for plaintiffs admits the correctness of his honor's ruling unless, as he contends, the defendant's counsel entered a general appearance before the justice of the peace. Prior to the return day of April 23d, it appears that counsel for plaintiffs and defendant, both of whom reside in Tarboro. some little distance from the office...