McClure v. . Fellows, 42 S.E. 951

42 S.E. 951 | N.C. | 1902

The defendants entered a special appearance and moved to vacate the attachment and dismiss the action upon the ground that no summons had issued, and that the levy of the attachment was void and of no effect. His Honor overruled the motion, and defendants excepted and appealed.

From the facts agreed it appears that the summons was filled out and signed by the clerk, but never issued to the sheriff or to any one for him, but remained in the office of the clerk. An order of publication of the summons and of the warrant of attachment was duly signed by the clerk, and the same was duly published. So the question raised by defendants' exception for our decision is, did the publication pursuant to the order of the clerk dispense with the issuing of the summons?

There are only two ways by which a civil action may be commenced: 1. By issuing a summons; the Code, sec. 199. 2. By submitting a controversy without action; the Code, sec. 567. When the former method is resorted to the action is commenced when the summons is issued (sec. 161), and not until that is done. But if the defendant sees proper to do so he may appear without a summons and thereby waive its issuance. Moore v. R. R., 67 N.C. 209; Middleton v. Duffy,73 N.C. 72; Etheridge v. Woodley, 83 N.C. 11; Fleming v. Patterson,99 N.C. 404. However, no such waiver was made in this case.

The summons was not issued. It did not pass from the hands of the clerk. It was never delivered to the sheriff nor to (511) any one for him, expressly or impliedly. Therefore it was never issued. Webster v. Sharpe, 116 N.C. 466 (at page 471). It was in process of issuance, and had it been delivered to the sheriff, or to some one for him, its issuance would have become complete and been in force and of effect from the time of the filling out and dating by the clerk.

The plaintiff contends that the order by the clerk of the publication of the summons and notice of attachment and the actual publication thereof, as required by statute (Code, secs. 219 and 352), dispensed with the formality of issuing a summons to the sheriff, who would have (knowing the defendants to be nonresidents and not within his county) to make a return of non estinventus, and that the defendants were in no way prejudiced by the fact that the summons was not issued from the clerk's office; that as full and actual notice was given to defendants by the publication when and where to come and defend their property as if the summons had in fact been issued; that the court acquired jurisdiction of the property levied upon under such order and publication, and that it would have been useless for the clerk to have handed to the sheriff the summons for him to enter thereon, "Not to be found in North Carolina after due search," and then to hand it back to the clerk, when the fact that defendants were not residents and could not be found in the State already appeared to the court by affidavit.

This contention cannot be sustained, for it is contrary to the express requirements of the Code and the rulings of this Court.

Attachment is a provisional or ancillary remedy, and derives its life and support from the action, which can exist only when constituted in one of the ways above stated. So, there being no summons to support the action and no waiver of the same, all the proceedings had were not only irregular but void. Marsh v. Williams, 63 N.C. 371 (at page 373).

The service attempted to be made by publication was a (512) nullity, for no summons had been issued, and therefore none could be served. The warrant of attachment may be granted to accompany the summons or at any time after the commencement of the action (Code, sec. 348), but not before. Here the attachment issued, but no summons. So it was void and of no effect. Marshv. Williams, supra.

Error.