261 N.C. 778 | N.C. | 1964
The motion to dismiss allowed in the Municipal-County Court of Guilford County and affirmed upon appeal to the Superior Court of said county, was based upon Rule 23 of Chapter 971
As we construe this Rule, it simply means that when the plaintiff seeks to recover a sum in excess of $2,000.00 in the Municipal-County Court of Guilford County, such action cannot be instituted except upon written pleadings as required in civil actions in the Superior Court by G.S. 1-122. This being so, such pleadings are a prerequisite to the institution of such an action in the Municipal-County Court of Guilford County. It is not a question of jurisdiction but one of procedure.
Furthermore, irrespective of the provisions of Rule 23, the defendant was entitled to an order (if he had requested it) dissolving the attachment for failure to commence service by publication within 31 days after the issuance of the order of attachment. G.S. 1-440.7. The order of attachment was issued on 6 August 1963, while the order dismissing the action, pursuant to the provisions of Rule 23, was not entered until 25 September 1963, 50 days later; and neither at that time nor since does the record disclose any effort to obtain service by publication. No affidavit has been filed, as required by G.S. 1-98, nor has there been any request for an extension of time in which to procure such service. The service of process by publication is in derogation of the common law, and the statute making provision therefor must be strictly construed. Com’rs. of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E. 2d 144, and cited cases.
■ The order entered below will be upheld.
Affirmed.