Pass v. . Elias

135 S.E. 291, 192 N.C. 497, 1926 N.C. LEXIS 329

• Court: Supreme Court of North Carolina
• Decided: November 10, 1926
• Status: Published

Opinion

BeoodeN, J.

Tbe question is this: • Must tbe summons in tbe court of a justice of tbe peace be served by delivering a copy to tbe defendant ?

3 C. S., 479, provides tbat “tbe officer to whom the summons is addressed must note on it tbe day of its delivery to him, serve it by delivering a copy thereof to each of tbe defendants, and return it within tbe time specified therein for its return, etc.”

C. S., 1500, rule 16, provides: “Tbe chapter on Civil Procedure, respecting forms of actions, parties to actions, tbe times of commencing actions, and tbe service of process, shall apply to justices’ courts.”

C. S., 1487,, provides for tbe issuance and form of a summons and tbe return date in tbe courts of a justice of tbe peace.

C. S., 1488, provides tbat tbe officer to whom tbe summons is delivered shall return tbe same within five days after its receipt.

But neither of these statutes provides a method of serving tbe process, except tbe method prescribed in tbe chapter on Civil Procedure. Indeed, before tbe passage of tbe new practice acts, a summons issued by a justice of tbe peace against a corporation required tbat service should be made by delivering a copy. This was tbe identical method prescribed for serving summons in actions commenced in tbe Superior Courts against corporations.

Construing C. S., sec. 1500, sub-sec. 16, and C. S., 479, together, it is clear tbat a summons issued from a court of a justice of tbe peace must be served in tbe same manner as a summons issued from tbe Superior Court. As no copy of tbe summons was left with tbe defendant, as required by law, tbe defendant was not properly in court,' and tbe motion to dismiss should have been allowed. Aaron v. Lumber Co., 112 N. C., 189; Lowman v. Ballard, 168 N. C., 18; Hatch v. R. R., 183 N. C., 617.

Beversed.