McArthur v. . McEachin

64 N.C. 72

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Dick, J.

The proceedings in this case were not properly commenced by the issuing of a summons, and the injunction was premature and irregular, and was properly vacated: Patrick v. Joyner, 63 N. C. R. 573. The summons which bis Honor ordered to be issued returnable before him in Columbus County, was not sufficient to constitute the leading process in the action. The summons to commence a civil action, must be issued by a Clerk of a Superior Court at the request of the plaintiff, returnable to the next term of the proper court: Acts 1868 — 9, cb. 76. His Honor acted properly in giving judgment for costs upon the injunction bond, as the costs were incurred in that proceeding, and are provided for in the condition of said bond.

A prosecution bond is required to be given by the plaintiff upon the issuing of a summons, and its purpose is to secure to the defendant all such costs as be shall recover of the plaintiff in the action: O. O. P. sec. 71.

As no summons was issued proper to commence an action in this case, tbe filing of tbe prosecution bond was '■premature and inoperative, and no judgment can be. given upon it.

There is no error, and tbe judgment in :tbe court below is affirmed, with costs. Let tbis be certified.-

Pee Ottbiam. ■ Judgment affirmed.