Elias v. . Commissioners of Buncombe

153 S.E. 323, 198 N.C. 733, 1930 N.C. LEXIS 462

• Court: Supreme Court of North Carolina
• Decided: May 28, 1930
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: It is provided by C. S., 485, that where service of summons is to be had by publication the “order must direct the publication in one or two newspapers to be designated as most likely to give notice to the person to be served.” But there is no specific requirement of the statute that such finding shall appear in the order of publication.

The fact that one or more newspapers is designated for the publication of summons ought to carry a presumption of the requisite statutory finding and determination without a specific adjudication in the order to that effect. Guilford v. Georgia Co., 109 N. C., 310, 13 S. E., 861. When a court of record assumes to act, there is a presumption in favor of the rightfulness of its decrees. Hence, to require that such finding be embodied in the order when the publication is to be made in the Asheville Advocate and not when it is to be made in some other newspaper, would seem to be somewhat discriminatory and beyond the terms of the statute. To this extent, the judgment will be modified. Otherwise it is affirmed.

Modified and affirmed.