Fidelity & Casualty Co. v. Green

157 S.E. 797, 200 N.C. 535, 1931 N.C. LEXIS 380

• Court: Supreme Court of North Carolina
• Decided: April 1, 1931
• Status: Published

Opinion

Stacy, C. J.,

after stating the ease: The record contains no statement of case on appeal, hence we are limited to a consideration of the judgment, the appeal itself being an exception thereto. Parker Co. v. Bank, ante, 441.

The appellant rests his case upon the ground that the requirements of the statute, C. S., 491, providing for personal service on nonresidents in lieu of publication, have not been observed, in that, it is alleged, the place of residence of the nonresident defendant was not made to appear to the clerk by affidavit prior to his mailing copy of summons and petition to the sheriff of Spartanburg County, South Carolina, for service. But the clerk did have before him, at the time of issuing alias summons, not only the sheriff's return that the said T. A. Green was not to be found in New Hanover County, but also the verified answer of the North-Smith Coal Company to the effect that he was a nonresident of the State, and the summons issued to Spartanburg County, South Carolina, was personally served upon the defendant and,due return made thereon.

Under circumstances quite similar to those disclosed by the present record, it was held in the ease of Vick v. Flournoy, 147 N. C., 209, 60 S. E., 978, that the failure of the clerk to attach his seal to the papers before sending them into a distant State, while a requirement of the statute, C. S., 476, was not of the substance, and that the omission might be supplied later. So bere, tbe irregularity, if sucb it be, is not regarded as fatally defective, but may, in tbe discretion of tbe court, be supplied nunc pro tunc. To bold otherwise, we apprehend, would be to exalt tbe form over tbe substance. Tbe nonresident defendant was fully apprised, not only of tbe time and place be was required to appear, but also of tbe nature and purpose of tbe action. Tbe power of amendment or to cure a procedural defect, sucb as tbe one bere suggested, is expressly recognized by a number of decisions. Jenette v. Hovey, 182 N. C., 30, 108 S. E., 301; Mills v. Hansel, 168 N. C., 651, 85 S. E., 17; Sheldon v. Kivett, 110 N. C., 408, 14 S. E., 970; Branch v. Frank, 81 N. C., 180.

Service by publication as authorized by C. S., 484, is quite different from personal service on a nonresident under C. S., 491, and so tbe requirements of tbe two are different. Ratio legis est anima legis; mutata legis raiione, mutatur et lex. Foundation for service under the former statute must be laid in strict compliance with its provisions, for tbe very good reason that when personal service is not bad actual knowledge of the proceeding may come too late to avail tbe party whose property is sought to be taken. Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315; Spiers v. Halstead, 71 N. C., 209. "Whereas, under tbe latter statute, tbe nonresident is personally notified of tbe proceeding against bis property.

Furthermore, it would seem that T. A. Green, tbe only appealing defendant, “sawed tbe limb off between himself and tbe tree,” to quote tbe language of Clark, C. J., in Vaughan v. Davenport, 157 N. C., 156, 72 S. E., 842; S. c., 159 N. C., 369, 74 S. E., 967, so far as bis right to litigate tbe matter is concerned, when be assigned all bis right, title and interest-in and to tbe funds in question to tbe First National Bank of Spartanburg. This was done after be was served with process and before be entered special appearance and moved to quash. It is provided by C. S., 446, that “Every action must be prosecuted in tbe name of tbe real party in interest,” etc. Chapman v. McLawhorn, 150 N. C., 166, 63 S. E., 721.

Again, no notice of appeal was served on tbe North-Smith Coal Company, or tbe other defendants, and motion to affirm tbe judgment as to them must be allowed. Wallace v. Salisbury, 147 N. C., 58, 60 S. E., 713.

Affirmed.

ClabicsoN, J., concurs in result.