Cullen v. . Absher

26 S.E. 33, 119 N.C. 441

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

MoNtgomert, J.:

The motion to take the deposition was served upon, the defendant by a town constable. At the proper time objection was made to the reading of the deposition. Such service was not valid. Service of notices, as required by Section 597 of The Code, must be made by an officer who is authorized generally and by virtue of his office to serve process of the court which has jurisdiction of the action in which the notice was given. A town constable has no such authority. He can serve process issuing from the superior court, and in that case only when it is directed to him. Forte v. Boon, 114 N. C., 176; Davis v. Sanderlin, at this Term.

The paper which he undertook to serve was not process of the court. It was only a notice signed by the plaintiff. The deposition ought to have been read as evidence in the case.

New Trial.