Godwin v. . Monds

10 S.E. 1044, 106 N.C. 448

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

MeerimoN, C. J.:

To say the least, the judgment set aside in this action was irregular and voidable. The summons therein was not served upon the defendants by an officer in a way required, authorized or recognized bj^ law, nor did the defendants voluntarily go into Court and subject themselves to its jurisdiction. The Sheriff of the county of Cumberland had no authority in cases like this to servo process outside of that county. Hence, what his deputj' said to the defendants in the county of Harnett, and they said to him, as to the summons, went for naught; this did not make service of the summons at all, in contemplation of law, and the defendants were not bound to take notice of and act upon it as defendants in the action. Their merely verbal “acceptance” of service was too uncertain, indefinite and imperfect to serve the purposes of the law. Parties'cau be compelled to come into Court only in the way prescribed by law. They might have “ accepted ” service in writing, and this would have been treated as “ the written admission of” service as contemplated by the statute (The Code, § 228, par. 3). Bank v. Wilson, 80 N. C., 200; Nicholson v. Cox, 83 N. C., 44. Service admitted in writing is sufficient. The defendant in that case will not be allowed to deny that he has been served with process, and the writing makes a permanent memorial of the fact as part of the record. It is necessary that the evidence of the service of process shall be stable and permanent. , .

The return of the Sheriff by his deputy, that he had served the summons, was not conclusive. It was competent for the defendants to show, as they did, that there had not been lawful service; and when the Court found the fact, it not only had authority to do so, but it was its duty to set the judgment aside because of irregularity, as it did do. It might have been questioned whether the Court could detain the defendants in Court, but they did not except and appeal, and no question in that respect is before us.

There is no error. The judgment was proper. To the end, that further proceedings may be had in the action according to law, let this opinion be certified to the Superior Court.

No error.