Guilford v. . Georgia Co.

13 S.E. 861, 109 N.C. 310

• Court: Supreme Court of North Carolina
• Decided: September 5, 1891
• Status: Published

Opinion

Clark, J.:

This application is for a certiorari, as a substitute for an appeal claimed to have been denied by the Judge. Skinner v. Maxwell, 67 N. C., 257. It is clear that an appeal did not lie from the interlocutory ruling of the Court, and it was the duty of the Judge not to suspend proceedings. Carleton v. Byers, 71 N. C., 331. If the defendant was not duly served with process properly returnable to such term, he could either have disregarded the further proceedings of the Court, which would have been a nullity as to him, or he could have had his exception noted and have proceeded with the trial; the latter being the preferable and more commendable course. Plemmons v. Improvement Go./ 108 N. C., 614. The manifest delays and inconveniences from entertaining premature and fragmentary appeals have, indeed, been often pointed out. Hines v. Hines, 84 N. C., 122; Commissioners v. Satchwell, 88 N. C., 1; White v. Utley, 94 N. C., 511, and in many other cases. As no appeal lay, a certiorari as a substitute therefor cannot be granted. Badger v. Daniel, 82 N. C., 468.

Notwithstanding the petition must be denied, it may serve the end in view, to pass upon the points presented, as has been sometimes, though rarely, done by the Court, upon sufficient cause to justify it. McBryde v. Patterson, 78 N. C., 412; State v. Tyler, 85 N. C., 569; State v. Lockyear, 95 N. C., 633; State v. Nash, 97 N. C., 514; State v. Divine, 98 N. C., 778.

The publication required by chapter 108, Acts. 1889, is “ once a week for four weeks.” This, it appears from the petitioner’s application, was made, for it avers the daily publication in a newspaper from August 3 to August 31, 1891, and a publication on the four Mondays, August 3, 10, 17 and 24, was a publication “ once a week for four weeks” prior to the term of Court beginning Monday, August 31. But if the requirement is construed to mean publication “for four weeks,” still there was a compliance under our statute (The Code, §§ 596 and 602), for, “excluding the first day (August 3) and including the last day,” August 31, there was publication made for twenty-eight days, or “four weeks.” The same construction has always been given to the statute (The Code, § 200) requiring personal service “ ten days before the beginning of the term,” for- service before midnight of Friday, the tenth day before Court, has always been held sufficient. Taylor v. Harris, 82 N. C., 25. We do not think that the defendant, w’hen served by publication, is entitled to ten days in addition to the four weeks. The publication “ once a week for four weeks ” is a substitute for and stands in lieu of the “ten days” which is allowed to a party on whom summons is personally served This is not only consonant to the reason of the thing, but is in accordance with the express words of the statute, The Code, § 227: “In the cases in which service by publication is allowed, the summons shall be deemed served at the expiration of the time prescribed by the order of publication, and the party shall then be in Court; ” that is exactly as a paity who has had ten days’ personal notice of the summons would be in Court. We are cited to the New York decisions, but the statute in that State (Code N. Y., 441) differs essentially from ours in the omission of the words “and the party shall then be in Court.”

Nor is there any force in the further objection, that “ a copy of the summons and the proper title of the action was not made in the publication.” The publication as set out in the petition is a substantial publication of the summons and a full compliance with the statute.. It contains everything that is in the summons, and the additional matter in the publication, at the most, was mere surplusage. We cannot conceive how the defendant could have been prejudiced thereby.

Motion denied.