Carson v. Woodrow

Oct 9, 1912

Versions:160 N.C. 143

HoKe, J.,

after stating the case: On the facts presented we are of the opinion that the attachment in this case was properly dissolved. Our statute on this subject (Revisal, ch. 12, sec. 758 et seq.) in general terms provides that the writ may issue when the requisite facts are shown to the court by affidavit of prescribed form and substance, and before issuing the same the officer who issues, for the purpose of indemnifying defendant, shall require an undertaking with sufficient surety in a sum not less than $200, etc.

While our decisions are to the effect that when the terms of the law are duly complied with, the clerk is without further discretion in the matter, and that the issuance of the writ in most of its aspects is a ministerial act permitting performance by regular deputy, a perusal of the statute will readily disclose that in order to a valid writ there are important duties imposed in express terms upon the officials and which may not be delegated to the parties or their attorneys. It is true that such a custom has been allowed to prevail as to original process, the summons, and to ordinary subpoenas for witnesses, etc. (Webster v. Sharp, 116 N. C., 468; Croom v. Morrisey, 63 N. C., 591), but in the case of attachments, conferring as it does the present right to seize and sequestrate the property of the citizen before trial or opportunity to be heard, a stricter construction is required. Thus in 4 Oyc., page 400, it is said: “Attachment being an extraordinary and summary remedy in derogation of the common law, the courts will usually, in the absence of statutory provision to the contrary, construe the statute strictly in favor of those against whom the proceeding is employed, both as to the subject-matter of the attachment and the method of enforcing the remedy, and will exact of the plaintiff a strict compliance with all statutory requirements.” And in 2 Lewis’s Sutherland on Statutory Construction ■ (2 Ed.),.sec. 566, p. 1049 : “A party seeking the benefit of such a statute must bring *147himself strictly, not within the spirit, but within the letter; he can take nothing by intendment. . . . The remedy by attachment is special and extraordinary, and the statutory provisions for it must be strictly construed, and cannot have force in cases not plainly within their terms.” And our decisions are in full approval of this position. Skinner v. Moore, 19 N. C., 138-146; Bank v. Hinton, 12 N. C., 398-99.

Again, and by reason of the same rule of construction, it must be held that a writ of attachment issuing out of the Superior Court on causes within that jurisdiction shall be addressed to the-sheriff of the county. On this question section 765, Revisal, provides as follows: “The warrant shall be directed - to the sheriff of any county in which the property of such defendant may be, or in case it be issued by a justice of the peace to such sheriff, or to any constable of such county,” etc. Thus making clear distinction between writs issuing from the -Superior Court and courts of justice of the peace and in express terms- requiring that writs of attachment from the Superior Courts' shall, as stated, be addressed to the sheriff of the county. There are different statutes, general and special, conferring on town and township constables the power of serving ordinary court process, as in Revisal, sec. 937, sec. 2939. But the cases construing these statutes have thus far generally held that, to make a valid service of process from the Superior Courts by constables, the same should be specially addressed to such officer by his official title. McGloughan v. Mitchell, 126 N. C., 681; Davis v. Sanderlin, 119 N. C., 84, and these statutes could not apply, therefore, when as'in this case the writ could not be so directed.

For the reasons stated we are of opinion that the attachment writ and the seizure of property under it were invalid, and the judgment of his Honor discharging same must be affirmed.

Affirmed.