Jenette v. Hovey & Co.
108 S.E. 301
N.C.
1921
Check Treatment
Stacy, J.,

after stating tbe case: Tbis action was brought to recover damages for an alleged breach of contract growing out of an agreement on tbe part of tbe defendant, Hovey & Company, to deliver a certain quantity of seed Irish potatoes to tbe plaintiffs at Elizabeth City, N. C., during tbe month of January, 1920. Tbe defendant, being a nonresident corporation and having no XDrocess agent in tbis State, could not be served personally witb summons; hence, service was sought to be obtained by issuing a warrant of attachment and levying upon tbe proceeds of a draft in tbe bands of tbe First and Citizens National Bank of Elizabeth City, N. 0., it being alleged that said funds belonged to Hovey & Company. Tbe defendant, through its counsel, entered a special appearance, and, upon tbe facts as above stated, moved to dismiss tbe attachment for want of any service of process, alleging that none bad been made, either personally or by publication.

From an adverse ruling on tbis motion, tbe defendant, Hovey & Company, excepted and immediately appealed, which it bad a right to do under a number of decisions of tbis Court. Finch v. Slater, 152 N. C., 155, and Warlick v. Reynolds, 151 N. C., 606. Tbe motion to dismiss tbe attachment affects a substantial right, and from tbe court’s refusal to grant tbe same, a present appeal will lie. Sheldon v. Kivett, 110 N. C., 408; Roulhac v. Brown, 87 N. C., 1; Judd v. Mining Co., 120 N. C., 397.

Tbe appellant rests its case upon tbe ground that plaintiffs have failed to meet tbe requirements of tbe statute witb respect to service of process as asked for and issued in tbis case.

In tbe first place, it should be noted that, in proper instances, where civil actions are commenced and service is obtained by attachment of defendant’s property and publication of a notice based upon tbe jurisdiction thus acquired, tbe issuance of a summons is unnecessary. Mills v. Hansel, 168 N. C., 651; Armstrong v. Kinsell, 164 N. C., 125; Currie *33 v. Mining Co., 157 N. C., 217; Grocery Co. v. Bag Co., 142 N. C., 174, and Best v. Mortgage Co., 128 N. C., 351.

But it is urged that the law in this respect was declared to be otherwise in Ditmore v. Goins, 128 N. C., 325, and McClure v. Fellows, 131 N. C., 509, and so it was. It may be observed, however, that these cases were in direct conflict with the decision of the Court in Best v. Mortgage Co., 128 N. C., 351; and, besides, McGlure’s case was expressly overruled in Grocery Co. v. Bag Co., 142 N. C., 174, which of necessity overruled Ditmore’s case, though not specifically mentioned therein. Therefore, both of these cases must now be considered or understood as having been overruled, and no longer are precedents. They have never been approved in any subsequent opinion; but, on the contrary, a different ruling has been announced and consistently followed.

We then come to consider whether plaintiffs have brought themselves within the statute providing for service by attachment and publication.

The affidavit filed at the institution of the action would have justified the clerk in signing an order of publication (Luttrell v. Martin, 112 N. C., 593, and Branch v. Frank, 81 N. C., 180), and his failure to do so at the time doubtless was due to an oversight or inadvertence on the part of plaintiffs. Nevertheless, the necessary order was not made until an additional affidavit was filed, nearly a year later, and after the defendant had entered a special appearance and moved to dismiss for want of publication, etc. The defendant contends that under C. S., 802, and the decision of this Court in Bowman v. Ward, 152 N. C., 602, the-, warrant of attachment in the instant Case should have been vacated.. While it is true the delay in obtaining the order of publication might well be characterized as unusual, and his Honor probably would have been justified in so holding, yet we think it was within his discretion to permit the publication to continue. The rights of all parties have been preserved, and none destroyed, by this ruling. A similar question was presented in the case of Mills v. Hansel, supra, where the present Chief Justice, speaking for a unanimous Court, said: “The court acquired jurisdiction of the action by the service of the attachment upon the property of the defendant. If the notice was not duly served by the publication, it was 'error to discharge an attachment granted as ancillary to an action because of the insufficiency of the affidavit to obtain service of the summons by publication, for it is possible that the defect may be cured by amendments.’ Branch v. Frank, 81 N. C., 180. The remedy is not to dismiss the attachment, but by ordering a republication, for as. the defendant is a nonresident, to dismiss the attachment may deprive the plaintiff of all remedy by the removal of the property before a new-proceeding and attachment can be had,” citing Price v. Cox, 83 N. C., 261; Penniman v. Daniel, 90 N. C., 159; S. c., 93 N. C., 332.

*34 C. S., 806, wticb bears more directly upon tbe question at issue, requires publication of tbe issuance of tbe attachment, unless tbe defendant can personally be served with process, and it bas been beld witb us tbat a failure to make sucb service, either personally or by publication, entitles tbe defendant to have tbe attachment dismissed. But it bas also been decided tbat tbe Court, in its discretion, may extend tbe time for ordering publication and service of sucb process. Finch v. Slater, supra; Mills v. Hansel, supra, and Price v. Cox, 83 N. C., 261.

Hence, upon authority, we think tbe ruling of bis Honor, made in tbe exercise-of bis discretion, must be upheld. It is so ordered.

Affirmed.