13 S.E. 861 | N.C. | 1891
The petition alleges that notice of summons was published in The DailyRecord from 3 August, 1891, to 31 August, 1891, both days inclusive, the last day being the day on which court began. *226
That on Saturday, 5 September, the case was called by his Honor in its order on the summons docket, when the attorney for defendant entered a special appearance, and moved:
1. That this case go over to next term as return term of summons, because the notice of publication embraces only four weeks, and not four weeks and ten days.
2. The case is not properly constituted in this court, in that a copy of the summons and the proper title of action was not made in the publication.
Both motions were overruled and defendant prayed an appeal, which was refused.
The following is a copy of the publication made:
NOTICE.
GUILFORD COUNTY — Superior Court. } } STATE OF NORTH CAROLINA AND THE BOARD } Service by OF COMMISSIONERS OF GUILFORD COUNTY } Publication. } v. } } THE GEORGIA COMPANY. }
This is a civil action, brought in this court in behalf of the creditors of the defendant corporation to obtain the appointment of a receiver, and to follow and collect the assets of the defendant corporation for the payment of State and county taxes; and it appearing to may satisfaction that the defendant is a corporation duly organized under the laws (312) of this State; that a summons has been duly issued against the defendant, and that no officer or agent thereof, upon whom the service of the same can be lawfully made, can, after due diligence, be found within the State, the defendant, the said The Georgia Company, is hereby notified to appear at the next term of this court to be held on 31 August, 1891, and demur or answer to the complaint which will be filed in said cause within the first three days of said term, or judgment by default will be entered against it.
It is ordered that this notice be published once a week for four successive weeks in The Daily Record, a newspaper published in the said county of Guilford.
This 3 August, 1891. JNO. J. NELSON, C. S.C.
This application is for a certiorari, as a substitute for an appeal claimed to have been denied by the judge. Skinner v. Maxwell,
Notwithstanding the petition must be denied, it may serve the end in view, to pass upon the points presented, as has been sometimes, though rarely, done by the Court, upon sufficient cause to justify it. McBryde v.Patterson,
The publication required by chapter 108, Acts 1889, is "once a week for four weeks." This, it appears from the petitioner's application, was made, for it avers the daily publication in a newspaper from 3 August to 31 August, 1891, and a publication on the four Mondays, August 3, 10, 17 and 24, was a publication "once a week for four weeks" prior to the term of court beginning Monday, 31 August. But if the requirement is construed to mean publication "for four weeks," still there was a compliance under our statute (Code, secs. 596 and 602), for, "excluding the first day (3 August) and including the last day," 31 August, there was publication made for twenty-eight days, or "four weeks." The same construction has always been given to the statute (Code, sec. 200) requiring personal service "ten days before the beginning of the term," for service before midnight of Friday, the tenth day before court, has always been held sufficient. Taylor v.Harris,
Nor is there any force in the further objection, that "a copy of the summons and the proper title of the action was not made in the publication." The publication as set out in the petition is a substantial publication of the summons and a full compliance with the statute. It contains everything that is in the summons, and the additional matter in the publication, at the most, was mere surplusage. We cannot conceive how the defendant could have been prejudiced thereby.
Motion denied.
Cited: Sheldon v. Kivett,
