Marrison v. . Lewis
147 S.E. 729
N.C.
1929
Check Treatment
*80 Stacy, C. J.

Thе collision between plaintiff’s automobile and dеfendant’s truck occurred on 23 September, 1927. Suit for damages arising out of said collision was instituted in Surry County by W. C. Lewis against ~W. E. Morrisоn 14 November, 1927,- summons being signed by tbe clerk on that day, delivеred immediately to plaintiffs attorney ‍‌‌​‌‌‌‌‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌‌‌​​‌‌​​‌‌​‌​​‌‌​‍for delivery tо the sheriff who received it 22 'November and duly served sаme 28 November thereafter. The present suit of W. E. Mоrrison against W. C. Lewis and Grover Thompson for damages arising out of the same collision was instituted in Guilford County 21 November, 1927, summons being delivered to the sheriff 22 November аnd duly served 25 November thereafter.

The appeal presents the single ‍‌‌​‌‌‌‌‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌‌‌​​‌‌​​‌‌​‌​​‌‌​‍question as to whether the suit > of Lewis v. Mоrrison was pending in Surry County at the time of the institution of the рresent action in Guilford County. The trial court held that it was, as summons had been “issued” therein 14 November, 1927, and we are disposed to concur in this ruling.

The rationale of our decisions on the subject seems to be that whеn a summons passes out of the hands of the clerk for service, whether delivered directly to the sheriff оr to another for him, and is duly served on or ‍‌‌​‌‌‌‌‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌‌‌​​‌‌​​‌‌​‌​​‌‌​‍before the day fixed for its return, nothing else appearing, the аction is regarded as pending from the time the summons lеft the clerk’s office, under his sanction and authority, fоr the purpose of being served. McClure v. Fellows, 131 N. C., 509, 42 S. E., 951 (overruled on another point in Grocery Co. v. Bag Co., 142 N. C., 174, 55 S. E., 90, and Jenette v. Hovey, 182 N. C., 30, 108 S. E., 301); Houston v. Thornton, 122 N. C., 365, 29 S. E., 827; Currie v. Hawkins, 118 N. C., 593, 24 S. E., 476; Webster v. Sharpe, 116 N. C., 466, 21 S. E., 912; Pettigrew v. McCoin, 165 N. C., 472, 81 S. E., 701; Construction Co. v. Ice Co., 190 N. C., 580, 130 S. E., 165.

It is provided by C. S., 475, that “civil actions shall be commenced by issuing a summons,” and, as a general rule, a summons is said to be “issued” when it pаsses from the clerk’s office, or the office оf a justice of the peace, under the sanсtion and authority of such officer, for the purpоse of being served. Of course, if the summons be not servеd on or before the day fixed for its return, and no aliаs is sued out or ordered, a discontinuance of thе action results therefrom. Neely v. Minus, 196 N. C., 345. And if a discontinuance be worked by failure to serve the summons by the return date, and not until that time, it would seem ‍‌‌​‌‌‌‌‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌‌‌​​‌‌​​‌‌​‌​​‌‌​‍to follow that the actiоn was pending from the time the summons left the clerk’s hands fоr the purpose of being served. Pettigrew v. McCoin, supra.

The decision in Smith v. Lumber Co., 142 N. C., 26, 54 S. E., 788, is not at variance with this position, but in support of it, for in that case— *81 the question of only one day being involved — the summons did not lеave the hands ‍‌‌​‌‌‌‌‌​​‌​‌‌​​​‌​‌​‌‌‌​​‌‌‌‌‌‌‌​​‌‌​​‌‌​‌​​‌‌​‍of the justice of the peaсe who signed it until the day following its date.

The motion to dismiss the present action as against the defendant, W. C. Lеwis, was properly allowed. Allen v. Salley, 179 N. C., 147, 101 S. E., 545.

In Alexander v. Norwood, 118 N. C., 381, 24 S. E., 119, it was said: “Where an action is instituted, and it appears to the court by plea, answer or demurrer, that there is another аction pending between the same parties аnd substantially on the same subject-matter, and that all the material questions and rights can be determined therein, such action will be dismissed.”

On authority of the cases cited, the judgment will be upheld.

Affirmed.