Lead Opinion

Adams, J.

Tbe legal right to recover damages for death caused by wrongful act did not exist at common law, and was first conferred in England by Lord Campbell’s Act, 9 and 10 Viet., cb. 93 (1846). Thereafter tbe main features of this statute were enacted by tbe General Assembly, and are now included in the Consolidated Statutes. Section 160 provides, in part, tbat when tbe death of a person is caused by tbe wrongful act, neglect, or default of another, . , . tbe person or corporation causing tbe death shall be liable to an action for damages to be brought by tbe personal representative of tbe deceased within one year after such death. Tbe words “to be brought within one year” have been interpreted, not as a statute of limitation, wbicb must be pleaded (O. S., 405), but as a condition annexed to tbe plaintiff’s cause of action; and at tbe trial tbe plaintiff must prove tbat bis action was instituted within tbe time prescribed by law. Taylor v. Iron Co., 94 N. C., 526; Best v. Kinston, 106 N. C., 206; Gulledge v. R. R., 147 N. C., 234; S. c., 148 N. C., 568; Hall v. R. R., 149 N. C., 109; Trull v. R. R., 151 N. C., 546; Bennett v. R. R., 159 N. C., 346.

At tbe bearing tbe defendant contended tbat tbe plaintiff’s action bad not been instituted within twelve months after tbe intestate’s death, and at tbe conclusion of tbe evidence sought a directed verdict both by motion and by written request. Tbe intestate’s death occurred on 22 January, 1918. Tbe original summons was issued on 13 January, 1919, and was' returnable to a criminal term of one week, beginning on 3' *621March. It was received by tbe sheriff on the day it was issued, but was not returned to the March term. In fact, it was not served, according to the officer’s certificate, until 10 April, and was then returned to the May term. On 10 April, upon affidavit filed by an attorney for the plaintiff, the clerk issued another summons against the defendant, returnable to the May term (26 May). This summons was indorsed “alias original,” but there was nothing else to indicate that it was intended for alias process; it was issued without an order from the judge, and "was served on 10 April and returned with the original summons to the May term. The act to restore the provisions of the Code of Civil Procedure in regard to process and pleadings went into effect 1 July, 1919.

An action is commenced as to each defendant when the summons is issued against him (C. S., 404, 475), but in actions in personam jurisdiction of a cause and of parties litigant can be acquired only by personal service of process within the territorial jurisdiction of the court, unless there is an acceptance of service or a general appearance) actual or constructive. Bernhardt v. Brown, 118 N. C., 701; Vick v. Flournoy, 147 N. C., 212; Warticle v. Reynolds, 151 N. C., 610; 21 R. C. L., 1315. The summons must be served on a corporation by the delivery of a copy thereof to one of certain designated officers or to a local agent (C. S., 483); and this requirement, it is held, must be strictly observed. Allen v. Strickland, 100 N. C., 226; Smith v. Smith, 119 N. C., 314; Lowman v. Ballard, 168 N. C., 18. In the ease last cited, Hoke, J., says: “Authority here is also to the effect that when a statute provides for service of summons or notices in the progress of a cause by certain persons or by designated methods, the specified requirements must be complied with or there is no valid service.” The case of Aaron v. Lumber Co., 112 N. C., 189, also is directly pertinent; and, indeed, is decisive of the question here presented. The constable in the township in which the defendant had its principal place of business served the summons by “handing” it to the president and the secretary and treasurer of the defendant. They were the only officers. They read the summons and returned it to the constable. The court held that since no copy of the summons was left with either officer, the pretended service was not legally sufficient. In Amy v. City of Watertown, 130 U. S., 317, Mr. Justice Bradley said: “The cases are numerous which decide that when a particular method of serving process is pointed out by the statute, that method must be followed, and the rule is especially exacting in reference to corporations,” and cites Kibbe v. Benson, 84 U. S., 624; Alexandria v. Fairfax, 95 U. S., 774; Settlemier v. Sullivan, 97 U. S., 444; Evans v. R. Co., 14 Mees. & W., 142; Walton v. Universal Salvage Co., 16 Mees. & W., 438; Brydolf v. Wolf, 32 Iowa, 509; Hoen v. A. & P. R. Co., 64 Mo., 561; Lehigh Valley Ins. Co. v. Fuller, 81 Pa., 398.

*622The appeal shows, not a technical irregularity in the service of the summons, but a total failure of the service of the first summons. The statute in plain terms requires the delivery of a copy of the summons, and provides that the proof of service shall be the certificate of the officer, the affidavit of the printer, or the written admission of the defendant.

Yery clearly, in our opinion, the interview between the sheriff and Hardin, the local agent, did not amount to service of the summons. The judge found that Hardin acted in good faith and not with intent to deceive. No copy was left.with him, and the certificate of the sheriff, which is the proof provided by statute, shows service, not on Hardin, but on Bridgers, the president. The cases cited by the plaintiff- — Johnson v. Johnson, 86 Ga., 450; Taylor v. Cook, 1 N. J. L., 54 — are not relevant to the-facts in the case at bar.' In the former the officer, by mistake, left a copy of the writ at the home of the defendant’s brother, and the defendant accepted such delivery as service; and in the latter the defendant directed the place of service.

A proper application of these principles provides substantial support for the argument that neither the officer’s conversation with Hardin nor the pretended service of the original summons on the president after the return day was effectual to confer jurisdiction. In each instance such service was a nullity. In the latter case, after the return day the writ lost its vitality, and service thereafter made could not confer upon the court jurisdiction over the defendants so served. 19 Ency. P. & P., 600; 21 R. C. L., 1273; 32 Cyc., 456; S. v. Kennedy, 18 N. J. L., 22; Hitchcock v. Haight, 7 Ill., 603; Draper v. Draper, 59 Ill., 119; Peck v. La Roche, 86 Ga., 314; Cummings v. Hoffman, 113 N. C., 268; Peebles v. Braswell, 107 N. C., 68; Mfg. Co. v. Simmons, 97 N. C., 89.

If service of the original writ was ineffectual, what was the legal import of the second summons? Did it mark the commencement of a new action or relate back and continue in effect the suit originally begun? That the original summons must be followed by process successively and properly issued' in order to preserve a continuous single action referable to the date of its issue, is-familiar learning. This successive process is an alias or pluries writ or summons. Fulbright v. Tritt, 19 N. C., 492; Penniman v. Daniel, 91 N. C., 434; S. c., 93 N. C., 332; Etheridge v. Woodley, 83 N. C., 11; Battle v. Baird, 118 N. C., 861. Such is the manifest significance of C. S., 481: “A failure to keep up the chain of summonses issued against a party, but not served, by means of an alias or pluries summons, is a discontinuance as to such party; and if a summons is served after a break in the chain, it is a new action as to such party, begun when the summons was issued.”

Ye must, therefore, determine (1) whether there was a break in the chain of process, and (2) whether the second summons continued the original suit.

*623Chitty says: “If tbe proceeding should be by writ of summons, then the plaintiff, or his attorney, must return 'non est inventus/ and enter the same of record in due time. . . . If it be necessary to continue the first writ of summons, then an alias or pluries may be issued into the same or another county; and it is very essential to take care that the first writ, whether of summons or capias, be in due time returned non est inventus, and that every continued process to save the statute of limitations must have a memorandum indorsed or subscribed, specifying the date of the first writ.” Chitty’s Practice, 408; 3 Bl., 280 et seq Tidd’s Practice, 111; Elliott’s Gen. Practice, 459; 20 Ency. P. & P., 1178; 32 Cyc., 445; 21 R. C. L., 1266.

This principle is approved in our decisions. In Fulbright v. Tritt, suprd, the facts are stated as follows: “The plaintiff, on 20 September, 1834, sued out a writ in case for slanderous words, commanding the sheriff to take the ‘body of Henry Tritt for Archibald Tritt,’ to answer, etc. At Fall Term, 1834, the sheriff returned the writ ‘executed on Henry Tritt — A. Tritt not to be found.’ No process issued from this term against Archibald Tritt. At Spring Term, 1835, the plaintiff entered a nol. pros, as to Henry Tritt, and issued what the clerk indorsed .as an alias writ, but which was in its terms an original writ, against Archibald Tritt, returnable to Fall Term, 1835; and the sheriff returned the same ‘not found.’ Then a writ, which the clerk called a pluries, but which was in terms an alias, was issued, returnable to Spring Term, 1836. This was executed; and the defendant appealed and pleaded the statute of limitations. The speaking of the words, as charged in the declaration, was within six months of the issuing of the original writ against ‘Henry Tritt for Archibald Tritt,’ but not within six months of the date of the first writ issued against Archibald Tritt, which was on 15 April, 1835.” Daniel, J., said: “If the original writ had been correctly issued against Archibald Tritt, returnable to Fall Term, 1834, as he was not arrested, the plaintiff should have issued an alias from that term. There was not an alias issued from that term, and the first suit was discontinued. The writ which issued on 15 April, 1835, against Archibald Tritt, must be considered the original in this action.” Fulbright’s case is approved in Etheridge v. Woodley, supra; Webster v. Laws, 86 N. C., 180; Hanna v. Ingram, 53 N. C., 55. In the case last cited reference is made to an intervening term, but in Fulbrighfs case it was held that the alias should have issued from the term to which the original summons was returnable.

In Webster v. Laws, supra, the facts were these: “The summons in the action was issued by a justice of the peace on 9 August, 1879, and the cause tried on 20th of the month. The defense set up was the pendency of another suit, instituted before another justice for the same *624cause of action and between tlie same parties, the warrant in which was returnable on the same day when the second suit was begun, but it does not appear to have been served. On the _ return day 'the justice who issued the first warrant was absent from the county and remained away several days. No further action was taken therein until some time afterwards, when an entry of nonsuit was made on the. docket of ■ the justice by himself. Upon these facts the Court declared, as matter of law, that the first action was depending and undetermined at the timé of the issuing and serving of the summons in the second action, and gave judgment against the plaintiffs, from which they appealed.”

Smith, C. J said: “We do not concur in the ruling that, upon the facts founds, the first action was pending when the second action was begun. The process not having been served, was exhausted on the day fixed for its return, and the action was in law then discontinued. This has been repeatedly decided in this Court. Fulbright v. Tritt, 19 N. C., 491; Governor v. Welch, 25 N. C., 249 ; Hanna v. Ingram, 53 N. C., 55; Etheridge v. Woodley, 83 N. C., 11.

“A discontinuance of process is different from a discontinuance of the action. 'When a plaintiff leaves a chasm in the proceedings of his cause,’ says Mr. Sellon, 'as by not continuing the process regularly from day to day and term to term, as he ought to do, the suit is discontinued and the defendant is no longer bound to attend.’ 2 Sellon’s Prac., 458; 3 Black. Com., 296.”

From these authorities we deduce the conclusion that the original action was discontinued, unless preserved by the summons issued on 10 April. There is no contention that it was a pluries writ. Was it an alias ? In the caption are the words, “alias original,” but there is nothing more to indicate that it was intended as alias process. In Simpson v. Simpson, 64 N. C., 428, it was held that the character of process purporting to be original is not changed by an indorsement of the word “alias.” As was said in Fulbright’s case, the alias should have issued from the return term. To the suggestion that the original had not then been returned there are two answers. In the first place, there is abundant authority that alias process follows the return of the original. Chitty’s Prac., supra; Tidd’s Prac., supra; Elliott’s Gen. Prac., supra; 20 Ency. P. & P., supra; 32 Cyc., supra; 21 R. C. L., supra. Here the original summons was in the hands of the sheriff when the second was issued, and they were served together. If the return of the original process was necessary the second evidently was not an alias; and, in the second place, if the return of the original was not necessary, the order for the alias should have been applied for at the return term; and in any event there should have been something in the body of the second summons to indicate its alleged relation to the original.

*625True, tbe original summons was returnable to a criminal term — but in accordance witb tbe statute: “At criminal terms of court, all civil process may be returned and pleadings filed wbicb may be returned and filed at civil terms", motions may be beard upon due notice, and trials in civil actions may be beard by consent of parties.” O. S., 1444. Watson v. Mitchell, 108 N. C., 364. “Motions upon due notice” are formal motions, as for alimony (Zimmerman v. Zimmerman, 113 N. C., 434), or to set aside a judgment (Allison v. Whittier, 101 N. C., 490), but not sucb as are merely incidental to tbe progress of a pending action. Coor v. Smith, 107 N. C., 431.

Nor did tbe defendant waive its right to insist that tbe'plaintiff bad not complied witb tbe statutory condition. It is true tbat tbe voluntary appearance of a defendant is equivalent to personal service of summons upon bim (O. S., 490) ; and if tbis statute and tbe decisions construing it were applicable to tbe record in tbis ease, tbe plaintiff’s argument would merit serious consideration. But they are not applicable for tbe reason tbat tbe defendant’s appearance was not voluntary. Appearance was made and an answer filed in response to proper service of tbe second summons; and if tbe defendant bad not answered, tbe plaintiff no doubt would bave recovered a judgment for tbe entire amount demanded in tbe complaint. Tbe defendant’s appearance was necessary to its resisting recovery in tbe action instituted by tbe plaintiff wben tbe second summons was issued. Tbe complaint alleges tbat tbe action was instituted witbin less than one year after tbe death of tbe plaintiff’s intestate, and tbe allegation is denied in tbe answer. Tbe defendants were not required to take action or move for judgment of nonsuit until tbe plaintiff’s evidence was concluded, because service of tbe second summons was. good. But then, at tbe first opportunity, tbe defendant insisted that, tbe pretended service of tbe first summons was void, tbat tbe second was. tbe beginning of tbe action in which tbe a-nswer -was filed, and tbat the-defendant was therefore entitled to a directed verdict.

His Honor did not find as a fact tbat tbe defendants were served witb summons on 13 January, but upon facts determined merely adjudged tbat tbe summons issued at tbat time was duly served. It is hardly necessary to remark tbat tbis is a judicial order or determination of bis Honor, involving a matter of law or legal inference, wbicb is subject to review on appeal. In like manner, tbe statement of Hardin tbat be was not a proper person upon whom process should be served was an inference of law wbicb did not absolve tbe officer from tbe duty of knowing, or ascertaining, whether or not sucb legal conclusion was correct.

Disregarding tbe question of a want of power to impart vitality to an exhausted process, we are unable to adopt tbe suggestion tbat bis Honor’s *626Ending of the facts was intended by way of amendment to validate a defective service.

Upon the facts disclosed by the record, we are constrained to hold that the action was not instituted within the statutory period, and that it cannot be maintained. The defendant was entitled to an instruction to this effect. For this reason the judgment is set aside and his Honor’s refusal to grant the defendant’s motion for a directed verdict is

Reversed.

Dissenting Opinion

Clark, C. J.,

dissenting: The judge, by consent, found the facts as follows: “The plaintiff’s intestate-was killed 22 January, 1918. The original summons was issued 13 January, 1919, and on that day the 'sheriff went to the office of the two defendants and informed J. H. Hardin, their local agent, that he had for service a summons against the defendants in favor of the plaintiff, advising him of its contents, and tendered him a copy of the summons for each defendant, which he refused to accept, and told the sheriff that he was not an officer of either of the companies, nor a proper person upon whom to make service, and that J. H. Bridgers, a nonresident, was the president of each company. The sheriff thereupon did not place either copy of the summonses in the possession of Hardin; but he kept them in his own possession and departed. Hardin was not an officer of either company, but at that time was performing the local duties of the president during the latter’s temporary absence. The sheriff, relying on Hardin’s statement, made no effort to serve the president in the county of his residence, but awaited his return to Alamance.”

C. S., 483,i provides that “if the action is against a corporation, the summons shall be served by delivering a copy thereof to the president, or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof.” It has been repeatedly held that the term “local agent” is not limited to those receiving money for the company, Copland v. Tel. Co., 136 N. C., 11, and that service is valid when made upon a general or local agent, Anderson v. Fidelity Co., 114 N. C., 417, and cases there cited, and the definition of “local agent” is fully stated in Whitehurst v. Kerr, 153 N. C., 76; Moore v. Bank, 92 N. C., 590, and other cases cited under C. S., 483 (1).

It is clear, therefore, that the officer, having informed' J. H. Hardin that “he had for service a summons against the defendants in favor of the plaintiff, advised him of the contents, and tendered him a copy of the summons for each defendant” that the defendants cannot profit by the disavowal of their agent, who informed him that he was “not an officer of either company, nor a proper person upon whom to make service,” though, as the judge finds, Hardin made the misstatement in good faith.

*627The bona fieles of the agent in making this statement is not material. He was the proper person on whom to serve the summons; he was informed of the contents of the paper and a copy of the summons for each of the defendants was tendered to him. This was equivalent to service upon the defendant company, which was not more fully complied with by leaving a copy, because the local agent refused to accept the copies tendered to him, and informed the officer, untruly, that service could not be made on him. The defendant certainly should not be allowed to profit by the wrong of its representative in refusing, whether in good faith or not, the copies tendered and in making the misstatement that he was “not a proper person” upon whom the summons could be served.

It would seem, certainly, that the sheriff did all that he could do, unless he had violently thrust the papers upon the local agent, whom he • did inform of the contents of the summons, and who prevented service by refusing to receive the summons and misrepresenting to the sheriff that he was not a proper person upon whom to serve the paper.

Judge Dániels correctly “adjudged that the summons was duly served on the defendants, 13 January, 1919.” The service was complete with the single exception that a copy of the summons was not left with the defendant.

Whether fraudulent evasion of service was intended or not, as a matter of fact, Hardin was a proper person upon whom to serve the summons, its contents were made known to him, copies of the summons were tendered to him, he refused to accept them, and misled the officer by informing him that he was not the proper party upon whom to serve the summons. For the purpose of service of summons, the agent and acting president was the defendant itself, and his act should not be allowed to vitiate such service and deprive the plaintiff of an opportunity to have his wrongs investigated and tried by the action of the very person through whom the law directed the notice of this action should be given.

It is true the sheriff mistakenly returned the summons as not served, but that is immaterial when, as correctly found by the judge, the summons, in fact, was duly served.

It is true that the return by the sheriff of process “not” served is prima facie sufficient, but this can be cured either by appearance or by showing the fact to be otherwise. When a sheriff has been sued for penalty in not serving a process when he has returned it “served,” it has been held that the return can be contradicted and the penalty recovered if such is the fact, and when, as in this case, the sheriff returned it not served when in fact it was, the truth of the facts can be ascertained, and the judge . in this case has adjudged correctly that this summons was served.

*628C. S., 490, provides: “A voluntary appearance of a defendant is equivalent to personal service of tlie summons upon bim,” and under this it bas been beld in 20 cases cited under that section, that “a general appearance waives all defects both, as to summons and service,” Moore v. Packer, 174 N. C., 665, and cases there cited. It is also held: "General appearance cures all defects in service of process,” Drainage District v. Comrs., 174 N. C., 738, and other cases cited under C. S., 401. Under all these cases it is held that however defective the service of. process, or when there has been no process issued at all, the party is as fully in court by a general appearance (which filing an answer is) as if the summons had been properly issued and duly served.

Moreover, appearance in an action dispenses with the necessity of process. Wheeler v. Cobb, 75 N. C., 21, and very numerous cases since then. Among the latest cases being Backley v. Roberts, 147 N. C., 207; Vick v. Flournoy, ibid., 216; Grant v. Grant, 159 N. C., 531, quoting the “learned opinion of Walker, J., in Scott v. Life Association, 137 N. C., 517.” Hatcher v. Faison, 142 N. C., 364; Harris v. Bennett, 160 N. C., 339. Indeed, there are numerous cases that although there has been no summons at all issued, a general appearance, by filing an answer or otherwise, makes service of summons at all unnecessary. Irregularity in service of summons is waived by defendant answering, although he is an infant.; Turner v. Douglas, 72 N. C., 127. Irregularity of summons is waived by appearance and plea in bar; Cherry v. Lilly, 113 N. C., 26. A general appearance, even before a referee, cures all antecedent irregularity; Roberts v. Allman, 106 N. C., 391.

It would indeed be a great hardship when, as the jury finds in this case; the plaintiff’s intestate was killed by the negligence of the defendant, without contributory negligence on his part and assessed the damages at $10,000, the family should nevertheless be barred of recovery because the sheriff, misled by the defendant, erroneously returned the summons “not served” when in fact it had been.

This action was brought upon allegation that the defendants were common carriers, and practically one and the same corporation, doing business in different names, but operated from the same office and having practically the same agents, servants, and owners, and being under the same general management, and that in January, 1918, the plaintiff’s intestate, an employee of these companies and acting under instructions of said companies’ superior officers and agents, and while assisting in the operation of their cars over the same track, was killed by the negligence of the defendants in failing and refusing to furnish plaintiff’s intestate proper and up-to-date cars and appliances in ordinary use at that time; that they were dangerously constructed; and further, that by their negligence in the management of said cars, and in refusing to have *629a sufficient number of bands to operate them; and by reason of the defective manner in which the appliances in use were built, as well as in the failure to have proper appliances, the plaintiff’s intestate was hilled. The details of the negligence are set out in the complaint very fully and completely.

The judge, having found as a fact that the defendants were served with summons on 13 January, 1919, upon J. H. Hardin, the local agent, and acting president of both corporations, he being for the purpose of service of summons the corporations themselves, and that he was informed that the officer had the summons for service upon him and the object of the suit, the refusal to accept the summons tendered him, and the misstatement made by him to the sheriff were the acts of the defendants, and there having been sufficient service within the statutory time, the cause was submitted to the jury. TJpon full evidence of the transaction, the jury found, upon the issues submitted to them, that the plaintiff’s intestate had been killed by reason of the negligence of the defendant, as alleged in the complaint, and that he did not by his own negligence contribute to the injuries which resulted in his death, as alleged in the answer, and assessed the plaintiff’s damages at $10,000.

TJpon this ascertainment of the facts by the jury, it would seem clear that the defendant should not, by reason of the untrue statements of their acting president and local agent to the officer who attempted to serve the process, be released from all liability if there was any technical irregularity in the manner of the service, it having been caused, as the judge finds, by the action of the defendants through their own officer and agent.

The defendants seek to deprive the plaintiff of compensation for the wrongful death, which the jury finds was inflicted on the husband and father of the beneficiaries in this action, upon the technical ground that a copy of the summons was not served upon the defendant companies and they rely upon a single case, Aaron v. Lumber Co.., 112 N. C., 190. But that case differs from the present in two essential particulars: (1) In that case the constable had no copy of the writ and could not have left a copy. In this case, the judge finds as a fact that a “copy of the summons for each of the defendants was tendered” to the acting president and local agent of the defendant, and he refused to receive these copies and misled the officer by telling him that he was not the proper party on whom to leave them. . (2) Again, in Aaron’s cáse, sufra, the defendants entered no appearance, and judgment was taken before a justice of the peace by default. In the present case the court adjudged that “service was duly made on 13 January, 1919,” as a matter of fact and of law, and the defendants took no exception to this ruling of the judge, but filed an answer and amended answer and remained in court two years and a half raising no exception to the finding of the judge *630that there had been sufficient service until the conclusion of the evidence at the trial in September, 1920. Surely the plaintiffs ought not to lose their recovery of compensation for the wrong inflicted by the negligence of the defendants because the defendants’ acting president and local agent refused to accept the copies of the summons which were tendered him for each defendant and by his erroneous statement induced the officer to leave without forcing'the copies of the summons upon him.

The plaintiff in ample time issued their summons, and were in no default, for the court adjudged correctly, and without any exception on the part of the defendants, that “the summons was duly served on the defendants 13 January, 1919.”

Stacy, J., concurs'in dissent.