Ryan v. . Batdorf

Supreme Court of North Carolina

Ryan v. . Batdorf

34 S.E.2d 81, 225 N.C. 228, 1945 N.C. LEXIS 301

CourtSupreme Court of North Carolina

DecidedMay 23, 1945

StatusPublished

Cited by8 cases

This text of 34 S.E.2d 81 (Ryan v. . Batdorf) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ryan v. . Batdorf, 34 S.E.2d 81, 225 N.C. 228, 1945 N.C. LEXIS 301 (N.C. 1945).

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Opinion

Denny, J.

It has been held by this Court that “Tbe character of a process purporting to be original is not changed by an endorsement of tbe word ‘alias.’ Mintz v. Frink, 217 N. C., 101, 6 S. E. (2d), 802. Tbe character of tbe process purporting to be original may be changed, however, when tbe process is made referable to tbe original writ, and sued out as required by G. S., 1-95. It is said in Hatch v. R. R., 183 N. C., 617, 112 S. E., 529, quoting from Chitty’s Practice: ‘If it be necessary to continue tbe first writ of summons, then an alias or pluries may be issued into tbe same or another county; and it is very essential to take care that tbe first writ, whether of summons or capias, be in due time returned non est inventus, and that every continued process to save tbe *230 statute of limitations must have a memorandum endorsed or subscribed, specifying the date of the first writ.’ Ohitty’s Practice, 408; 3 Bl., 280, et seq.; Tidd’s Practice, 111; Elliott’s Gen. Practice, 459; 20 Ency. P. & P., 1178; 32 Cyc., 445; 21 R. C. L., 1266.”

While an original summons cannot be changed into an alias summons by merely endorsing the word "alias” thereon, such process, however, can be converted into an alias by a memorandum or order endorsed or subscribed thereon specifying the date of the original writ. The sole purpose of a summons is to bring a party into court and to notify him that a complaint has been or will be filed against him. Battle v. Baird, 118 N. C., 854, 24 S. E., 668. An alias or pluries summons, improperly issued as such, may still be sufficient as an original summons. Neely v. Minus, 196 N. C., 345, 145 S. E., 771. But when it is desired that the action shall date from the date of the issuance of the original summons, or when it is necessary for it to do so, in order to toll the statute of limitations, the successive writs must show their relation to the original process.

The information contained on the face of the summons in the instant case made it referable to the original writ as required by our decisions, and it is, therefore, a valid alias. Hatch v. R. R., supra.

The judgment of the court below is

Affirmed.

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Denny, J.

It has been held by this Court that “Tbe character of a process purporting to be original is not changed by an endorsement of tbe word ‘alias.’ Mintz v. Frink, 217 N. C., 101, 6 S. E. (2d), 802. Tbe character of tbe process purporting to be original may be changed, however, when tbe process is made referable to tbe original writ, and sued out as required by G. S., 1-95. It is said in Hatch v. R. R., 183 N. C., 617, 112 S. E., 529, quoting from Chitty’s Practice: ‘If it be necessary to continue tbe first writ of summons, then an alias or pluries may be issued into tbe same or another county; and it is very essential to take care that tbe first writ, whether of summons or capias, be in due time returned non est inventus, and that every continued process to save tbe *230 statute of limitations must have a memorandum endorsed or subscribed, specifying the date of the first writ.’ Ohitty’s Practice, 408; 3 Bl., 280, et seq.; Tidd’s Practice, 111; Elliott’s Gen. Practice, 459; 20 Ency. P. & P., 1178; 32 Cyc., 445; 21 R. C. L., 1266.”

While an original summons cannot be changed into an alias summons by merely endorsing the word "alias” thereon, such process, however, can be converted into an alias by a memorandum or order endorsed or subscribed thereon specifying the date of the original writ. The sole purpose of a summons is to bring a party into court and to notify him that a complaint has been or will be filed against him. Battle v. Baird, 118 N. C., 854, 24 S. E., 668. An alias or pluries summons, improperly issued as such, may still be sufficient as an original summons. Neely v. Minus, 196 N. C., 345, 145 S. E., 771. But when it is desired that the action shall date from the date of the issuance of the original summons, or when it is necessary for it to do so, in order to toll the statute of limitations, the successive writs must show their relation to the original process.

The information contained on the face of the summons in the instant case made it referable to the original writ as required by our decisions, and it is, therefore, a valid alias. Hatch v. R. R., supra.

The judgment of the court below is

Affirmed.

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34 S.E.2d 81, 225 N.C. 228, 1945 N.C. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ryan-v-batdorf-nc-1945.

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