Mohn v. . Cressey

137 S.E. 718, 193 N.C. 568, 1927 N.C. LEXIS 405

• Court: Supreme Court of North Carolina
• Decided: April 20, 1927
• Status: Published

Opinion

Adams, J.

The basic reason of the motions to dismiss the action is the alleged want of jurisdiction. Ered L. Cressey says: (1) That he is the only defendant; that the summons, which was issued by a justice of the peace in Craven County and addressed to an officer of Edgecombe County, is void, and that the court had no jurisdiction of his person; (2) that no publication of the summons has been made; and (3) that the Farmers Banking and Trust Company, whose funds were attached, is not a party to the action. The Citizens National Bank of Boston rests its motion substantially on the ground first above set forth. We understand from the second paragraph of the statement of facts that both the notice of attachment and the service of the summons were “published against the defendant,” and that personal service was made on the garnishee, Farmers Banking and Trust Company, who did not appeal from the judgment. C. S., 819. The mere fact that the appellees entered a special appearance before the garnishee was served did not deprive the magistrate of his authority to continue the cause until service could be made. He ordered a continuance, and the garnishee was served before judgment was rendered or the case was determined. The vital question, then, is that of jurisdiction.

It is provided that no process shall be issued by a justice of the peace to any county other than his own, unless one or more bona fide defendants shall reside in and one or more bona fide defendants shall reside outside his county, in which case only may he issue process to any county in which such nonresident defendant resides. C. S., 1489. Hence, the justice would have acquired no jurisdiction of the defendant’s person by virtue of the summons issued in Craven and addressed to the sheriff, constable, or other lawful officer of Edgecombe, even if it had been personally served in the latter county. “A justice, having no jurisdiction to issue process running out of his county, is confined to the statutory method of acquiring jurisdiction of the person.” Rutherford v. Ray, 147 N. C., 253. But the fact that this summons could not run beyond the limits of Craven County does not necessarily determine the validity or invalidity of the judgment. The original summons, dated 29 December, 1924, was returnable on 28 January, 1925. The officer’s return was, “Not to be found in Edgecombe County.” The defendant, who was a nonresident of the State, could not be personally served with process; the issuance of the summons on which the return was made was therefore not necessary. A civil action must be commenced by issuing a summons, except where the defendant cannot be personally served because he is beyond the reach of process, in which event it may be instituted by affidavit, warrant of attachment, and service of summons by publication. In such case the summons is not directed to an officer of any particular county. Best v. Mortgage Co., 128 N. C., 351; Grocery Co. v. Bag Co., 142 N. C., 174, overruling McClure v. Fellows, 131 N. C., 509; Currie v. Mining Co., 157 N. C., 217; Armstrong v. Kinsell, 164 N. C., 125; Mills v. Hansel, 168 N. C., 651; Jenette v. Hovey, 182 N. C., 30.

Attachment is not strictly a proceeding in rem, because the judgment is conclusive only upon the actual parties to the litigation and those in privity with them; it is a proceeding quasi in rem, the court acquiring jurisdiction by attachment of the debtor’s property. The warrant is designed to serve the two-fold purpose of compelling the appearance of the defendant and of seizing and holding his property for payment of the debt — pone per vadium et salvos plegios, put by gage and safe pledge John Doe, the defendant. It is a provisional remedy, and as such does not affect the decision of the case upon its merits. Hornthall v. Burwell, 109 N. C., 10; Armstrong v. Kinsell, supra; C. S., 484 et seq.; 798 et seq.; 6 C. J., 31, sec. 4 (2).

The record contains the affidavit, the order of publication, the warrant of attachment, the undertaking, and the complaint, which substantially comply with the law; also the notice of the summons and the warrant of attachment, which, according to the facts found, were duly published. The object of the publication was to give notice of the summons and attachment, and to warn the defendant to appear on the return day and answer or demur to the complaint.

The appellees contend that the justice was prohibited by C. S., 1489, from issuing the warrant of attachment to an officer in Edgecombe County; that, in consequence, there was no lawful seizure of the defendant’s property; and that as publication of the summons could not be effectual without such seizure, the judgment is free from error. It may be granted that in the absence of an attachment levied on the property of a nonresident of the State, constructive service, or service by publication, is ineffective, and that when a warrant of attachment has been issued, the court acquires jurisdiction only to the extent that the attached property will satisfy the plaintiff’s recovery. Everitt v. Austin, 169 N. C., 622; Currie v. Mining Co., supra; Winfree v. Bagley, 102 N. C., 515. But the judge found as a fact that the sheriff of Edgecombe County had attached a fund in possession of the garnishee as the property of the defendant, and the question with which we are now concerned is whether the attachment was void because it was addressed by a justice of the peace in Craven to an officer in another county. In the sense in which it is used in C. S., 1489, does “process” mean a writ which is provisional or ancillary as well as a writ which is issued by authority of law for the purpose of bringing the defendant into court? Does it include a warrant of attachment?

In Fisher v. Bullard, 109 N. C., 574, the Court said: “We do not find any statute making the provisions of the Code of Civil Procedure (C. S., 463), as to the place of trial, applicable to trials before a justice.” But among the rules of practice enacted for a justice’s court is this: “The chapter on civil procedure is applicable to proceedings by attachment before justices of the peace, in all cases founded on contract wherein the sum demanded does not exceed two hundred dollars, and wherein the title to real estate is not in controversy.” C. S., 1500, Rule 17. Procedure by attachment is therefore regulated by statute contained in the chapter referred to. If the warrant of attachment is issued by a justice of the peace, it shall be directed to the sheriff, or any constable of any county in which the property of the defendant is located, and shall require the officer to attach and safely keep all such property, or so much as may be necessary to satisfy the plaintiff’s demand; and several warrants may be issued at the same time to different counties. O. S., 801, 805. The former statute, of which section 805 is a modification, contained the clause, “Provided such county be that of the justice issuing the warrant” (Battle’s Revisal, 186, sec. 203; The Code, sec. 357) ; but the proviso was subsequently stricken from the statute. Public Laws 1895, ch. 435. The amendment apparently indicates the legislative intent to extend the reach of the warrant of attachment, as distinguished-from original process, beyond the boundaries of the county in which the justice resides.

If, as in this case, the action is founded on contract, and the sum demanded does not exceed two hundred dollars, the warrant must be obtained from and made returnable before a justice of the peace of a county to the Superior Court of which it would have been returnable had the sum demanded exceeded two hundred dollars. C. S., 809. If the sum demanded had exceeded this amount, what would have been the procedure? Since the defendant is a nonresident of the State, the action would have been commenced in the Superior Court of the county in which the plaintiff resides, and would have been returnable in term to the court from which the summons issued. C. S., 469, 801. As the action was brought in Craven, the warrant, by virtue of the statute, was properly returnable before the justice of this county. These facts should be borne in mind: the defendant Cressey is a nonresident of the State, the Farmers Banking and Trust Company is garnishee, and the Citizens National Bank of Boston is intervener. "Want of authority in the justice to issue original process to any county other than his own did not inhibit the running of the warrant of attachment to another county, or the service of a notice upon the garnishee to appear before the court to which the attachment was returnable to answer upon oath as the statute provides; for issuing the warrant was only ¡incidental to the original action. C. S., 819; Baker v. Belvin, 122 N. C., 190.

As to the intervening bank, the. only question is whether it is entitled to the property, not whether there is irregularity in the attachment. Sitterson v. Speller, 190 N. C., 192.

The judgment vacating the attachment and dismissing the action is reversed, and the cause is remanded for further proceedings.

Eeversed.