Yeargin v. Siler

• Decision Date: 30 June 1880
• Court: North Carolina Supreme Court
• Parties: L. H. YEARGIN v. SUSAN SILER and others.

83 N.C. 348

L. H. YEARGIN

v.SUSAN SILER and others.

Supreme Court of North Carolina.

June Term, 1880.

MOTION to dismiss an action heard at June Term, 1880, of WAKE Superior Court, before Gudger, J.

Upon the facts set out in the opinion, the motion was allowed and the plaintiff appealed.

Mr. Walter Clark, for plaintiff .

Messrs. Gilliam & Gatling, for defendants .

DILLARD, J.

By the act of 1872-'73, ch. 1, and other subsequent acts, the county of Wake has four regular terms of the superior court in a year, of which two are return terms for all original and final process in civil causes, to-wit, February and August terms, and by the act of 1876-'77, ch. 85, §3, a summons issued more than ten days before its return term, if executed within the ten days, is directed to be placed on the summons docket and continued to the next term of the court at which it shall be treated as if said next term had been the return term thereof.

The plaintiff in this case sued out his summons from the clerk of Wake superior court on the 5th of August 1879, returnable to its proper return term in the same month, and more than ten days after its issue, directed to the coroner of Macon county, who executed the same by one Alman, specially deputed by him for that purpose, on a day less than ten days before the return day. The summons when returned was entered on the summons docket at the August term, and the defendants then entered an appearance by marking the names of their counsel, and again at January term next after, the same entry of appearance by defendants was still on the docket. At the February term, 1880, which was the next regular return term after the return term named in the summons, the plaintiff filed his complaint, and then the defendants entered a special appearance on a motion to dismiss for insufficient service, and from the judgment of the court below dismissing the action, this appeal is taken.

In this court it is urged as error in the judge below, that he held the service by the coroner by deputy to be insufficient, and also in entertaining the motion to dismiss after the entry of a general appearance to the action.

The only point necessary to be considered in the case is whether the coroner could execute the summons by a deputy against the sheriff who was a party to the action.

Blackstone, in his commentaries, says, “the office and power of a coroner are, like those of sheriff, either judicial or ministerial, but principally judicial;” and he further says, that when just exception exists to the sheriff for suspicion of partiality, as being interested in a suit or of kindred to a party, writs to be executed should be directed to the coroner, who in such case acts as the sheriff's substitute and in a purely ministerial character. 1 Blackstone, 348 and 349. See also to the same effect Comyn's Dig., Officer.

The rule in matters judicial is delegatus non potest delegare, but in duties ministerial, the officer may act in person or by a deputy of...