Atwood v. Atwood

233 N.C. 208 | N.C. | 1951

WiNBORNE, J.

This is the basic question raised by defendant, the appellant, on this appeal, and on which decision here rests:

When a summons in a civil action, commenced in Superior Court, is not served upon defendant therein by the sheriff, to whom it is directed, within ten days_ after the date of its issue, but is later returned by the sheriff with an endorsement thereon that it was served upon defendant on a date more than ten days after the date of its issue, is such return sufficient evidence of non-service to enable plaintiff to sue out an alias summons under the provisions of G.S. 1-95 ? Applicable statutes pertaining to civil procedure in this State, as interpreted and applied in decisions of this Court, afford an affirmative answer. Hence, the challenge to the judgment from which this appeal is taken may not be sustained.

Under the civil procedure in tbis State: Civil actions shall be commenced by issuing a summons, G.S. 1-88. Such “summons must be served by the sheriff to whom it is addressed for service within ten (10) days after the date of its issue; and ... if not served within ten (10) days after the date of its issue upon every defendant, must be returned by the officer holding the same for service, to the clerk of the court issuing the same, with notation thereon of its non-service and the reasons therefor as to every defendant not served.” G.S. 1-89.

And “when the defendant in a civil action ... is not served with summons within ten days, the plaintiff may sue out an alias or pluries summons, returnable in the same manner as original process ... at any time within ninety (90) days after the date of issue of the next preceding summons in the chain of summonses.”

The provisions of these statutes are summarized in Green v. Chrismon, 223 N.C. 724, 28 S.E. 2d 215, in opinion by Devin, J., in this manner: “It seems clear that the rule prescribed by these statutes is that in order to bring a defendant into court and hold him bound by its decree, in the absence of waiver or voluntary appearance, a summons must be issued by the clerk and served upon him by the officer within ten days after date of issue, and that if not served within that time the summons must be returned by the officer to the clerk with proper notation. Then, if the plaintiff wishes to keep his case alive, he must have an alias summons issued. In the event of failure of service within the time prescribed, the original summons loses its vitality. It becomes functus officio. There is no authority in the statute for the service of that summons on the defendant after the date therein fixed for its return, and if the plaintiff desires the original action continued, he must cause alias summons to be issued and served.” It thus appears that an alias summons may issue only when the summons has not been served. It is so held in Powell v. Dail, 172 N.C. 261, 90 S.E. 194.

In the light of these statutes it is the contention of defendant, as we understand it, that the return of the sheriff, as endorsed on the summons here being considered, shows actual service of it upon defendant after the expiration of the ten days after the date of its issue, rather than non-¡service of it within the said ten days period, and that so long as this return stands, there is no basis on which plaintiff may sue out an alias summons under the provisions of G.S. 1-95. This position may not be sustained.

The authority of the sheriff to serve the summons is derived from the statute, G.S. 1-89, and this statute limits the exercise of this authority to the ten-days period after the date of the issue of the summons. And, as held in Green v. Chrismon, supra, upon failure of service within the time prescribed, the original summons lost its vitality. It had become functus officio. Hence it appears from tbe return of the sheriff that what he did as to service of the summons was at a time when the life of the summons had expired, and when he had no authority to serve it. Thus, the return, in a legal sense, is tantamount to a return of non-service.

"What constitutes service of process, and whether upon a given state of facts service has been made are questions for the court. Williamson v. Cocke, 124 N.C. 585, 32 S.E. 963.

Moreover, while ordinarily when a sheriff returns that he has served the summons, this implies that he has discharged his official duty in that respect. But where, as here, he specifies the date of service, and it appears that that date was more than ten days after the date of issue of the summons, the force of such implication is entirely destroyed. See Strayhorn v. Blalock, 92 N.C. 292; Isley v. Boon, 113 N.C. 249, 18 S.E. 174; and Powell v. Dail, supra.

In Strayhorn v. Blalock, supra, decided when the statute (The Code 214) required that summons should be served by reading same to defendant, the Court held that the term “served,” as applied to summons, ex vi termini, implies that it was read to the defendant named in it. And again, “It is to be taken where he returns it “served” that it was served as the statute requires until the contrary is made to appear . . .”

But in Islay v. Boon, supra, after referring with approval to the principle so declared in Strayhorn v. Blalock, supra, the Court added: “Of course where the officer undertakes to set forth the manner of service, and it appears that he has not complied with the requirements of the law, the force of such implication is entirely destroyed.”

In the light of these principles applied to the case in hand, the judgment below is

Affirmed.