Wheeler v. . Cobb
75 N.C. 21
N.C.
1876
Check Treatment
Bynum, J.

The service of summons by publication, is fatally defective, in that it does not conform to the requirements of the statute. The foundation and first step of service by publication, is an affidavit that “ the person on whоm the summons is to be served, cannot, after due diligence, be found within the State.” Bat. Rev., chap. 17, sec. 83. This requirement wаs omitted in the affidavit, why, it is hard to conceive, as it was made by the attorney himself, who, as a prudent prаctitioner, ‍​​‌‌‌‌​​‌‌​‌​‌‌​‌​​‌​‌​‌​‌​‌‌​​​​​‌‌​‌‌​​​‌‌​‌​‌‍should have had the statute before him in drafting the affidavit. For this Court had repeatedly held, that thе provisions of this statute must be strictly followed. Spier v. Halstead, 71 N. C., 210. Everything neces-saty to dispense with personal service of the summons, must appear by affidavit. The mere issuing of a summons to the Sheriff of the County of Pasquotank and his endorsement upon it, the same day, and perhaps the next moment after it came to hand, that “ the defеndant is not found in my county,” is no compliance whatever with the law; for it might wTell be that the defendant was at thаt time in some other county in the State, and that the plaintiff knew it, or by due diligence could have known it, and made upon the defendant a personal service of the summons. Every principle of law requires thаt this personal service should be made, if compatible with reasonable diligence.

*25 But the ease states that “ the docket shows that at the re* turn term of the Court, J. P. Whedbee’s name is entered as attornеy'for the defendants,” and at the same term this en-entry was made upon the docket: “Defendants allowеd until the first of December to file pleadings — order mutual to take depositions upon ten days’ notice.” There ‍​​‌‌‌‌​​‌‌​‌​‌‌​‌​​‌​‌​‌​‌​‌‌​​​​​‌‌​‌‌​​​‌‌​‌​‌‍being nothing in this appearance by attorney, qualifying it, the only reasonable construction is, thаt it was a general appearance; that is for all purposes. A general appearance to an action, cures all antecedent irregularity in the process, and places the defendant upon the same ground as if he had been personally served with process. Pollard v. Dwight, 4 Cr. 421. Taylor v. Longworth, 14 Pet., 172, 14 Pet., 293. It was, therеfore, too late, at a subsequent term of the Court, to raise the objection to the regularity of the service. The Court will the more readily give this effect to an appearance entered withоut qualification, because such objections, raised by the defendant himself, who appears in Court to make them, are generally for delay, and ‍​​‌‌‌‌​​‌‌​‌​‌‌​‌​​‌​‌​‌​‌​‌‌​​​​​‌‌​‌‌​​​‌‌​‌​‌‍to avoid an answer to the merits of the action.

The defendant being thus regulаrly in Court, it was competent for him to show that the attachment was void, and. to move to vacate it. His ground is, that he was a resident of the State, and, therefore, in his case, no attachment lay.

In Horne v. Horne, 9 Ired., 99, and Abrams v. Pender, Busb., 260, a distinction is tаken between domicil and residence. To ‍​​‌‌‌‌​​‌‌​‌​‌‌​‌​​‌​‌​‌​‌​‌‌​​​​​‌‌​‌‌​​​‌‌​‌​‌‍acquire a new domicil there must be, not only residence but the animus manendi; but one may be a non-resident, without losing bis domicil or rights of citizensnip, in the State of his origin, or gaining a domiсil in another. The facts of our case are, that the defendant had accepted an offiсe of indefinite tenure, under the government of the United States, and had been assigned to duty in the States of Louisiana and Texas, and that the proper discharge of these *26 duties required his residence there for ‍​​‌‌‌‌​​‌‌​‌​‌‌​‌​​‌​‌​‌​‌​‌‌​​​​​‌‌​‌‌​​​‌‌​‌​‌‍an indefinite and undefined time.

Now, although the defendant may have continued to claim the rights and privileges of citizenship in the State of North Carolina; never voted or claimed the right to vote out of the State, and occasionally visited the State ; yet all this is consistent with his having a domicil in North Carolina and a residence elsewhere.

In Abrams v. Pender, befóse cited, A. enlisted in thearmy during the war with Mexico, and during his absence B. suеd out an attachment against his property. The question now presented was raised in that case but nоt decided, because the case went off on the ground that the statute then in force required that the removal of the defendant should have been fraudulent or with intent to evade process, beforе an attachment lay. Not so now. An attachment is now made a provisional remedy in the progress оf a cause, and-ean be sued out, whenever the defendant is a non-resident, regardless of intent. Bat. Rev., chap. 17, sec. 197. Without deciding who, in law, is a non-resident in other respects, but confining the decision to a construction of this statute, the conclusion is that where one voluntarily removes from this to another State, for the purpose of discharging the duties of an office of indefinite duration, which require his continuеd presence there for an unlimited time, such an one is a non-resident of this State for the purposеs of an attachment, and that notwithstanding he may occasionally visit this State, and may have the intent to return at some uncertain future time.

His Honor in the Court below decided the question of non-residence, as оne of fact, whereas it is one of law and fact. The facts as found constitute the defendant a nonresident under the statute. The affidavit for the attachment complies with the requirements of the Act, Bat. Rеv. chap. 17, sec. 201,2, and is therefore sufficient.

*27 There is error. The judgment is reversed and the case remanded, that the defendant may have leave to answer, and' that further proceeding’s may be had according to the course of the Court.

Per Curiam. • Judgment reversed.