Grady v. Richmond & Danville Railroad

21 S.E. 304, 116 N.C. 952

• Court: Supreme Court of North Carolina
• Decided: February 5, 1895
• Status: Published

Opinion

ClaRK, J.:

The power of the Court to permit the Sheriff to amend his return, both before and after judgment, so as to make it speak the truth, is settled beyond discussion. Campbell v. Smith, 115 N. C., 498, and cases cited; Clark’s Code, pp. 222, 227, 498, 499. The amendment “related back to the original return and has the same effect as if the amended return had been originally made.” Murfree on Sheriffs, Sec. 880; 22 A. & E. Ency., 204; Freeman on Ex., 358. There was no ground therefore on which to permit an answer to be now filed. The service upon “the local agent” was valid under the statute. Code, Sec. 217; Jones v. Insurance Co., 88 N. C., 499; Katzenstein v. Railroad, 78 N. C., 286; State v. Railroad, 89 N. C., 584. “The Receivers were only temporarily in charge of the corporation, in lieu of the regular officers, and a service upon their local agent is a service upon them. "Whether the judgment recovered will or will not be paid in preference to other liabilities of the corporation, does not affect this question.” Farris v. Railroad, 115 N. C., 600. Service upon the Receivers is service upon the corporation, as fully as if made upon the president and superintendent, whose duties they are temporarily discharging, as they come within the term “other head of the corporation,” Code, Sec. 217, and a service upon their local agent is merely a substitute for, and has the same legal effect as service upon them personally. Trust Co. v. R. R. Co., 40 Fed. Rep., 426; Ganebin v. Phelan, 5 Colo., 85. The statute, Code, Sec. 200, contains no exception or disci'imination which requires service of summons to be made as to railroad companies or their Receivers, more than ten days before the Term. Here, the service was legally and duly made on the defendants 75 days before the next-term.

We concur therefore in the ruling of the learned Judge that the proceedings were not “irregular and void” nor “without due service of process upon the defendants.” His judgment is in all respects

Affirmed.