State Ex Rel. McLeod v. Pearson

181 S.E. 753, 208 N.C. 539, 1935 N.C. LEXIS 76

• Court: Supreme Court of North Carolina
• Decided: October 9, 1935
• Status: Published

Opinion

Stacy, C. J.

It must be held, we think, that the purported service of process was not sufficient to bring the defendant into court. Dowling v. Winters, ante, 521; Harrell v. Welstead, 206 N. C., 817, 175 S. E., 283; Graves v. Reidsville, 182 N. C., 330, 109 S. E., 29.

It is provided by C. S., 881, that service of summons and complaint in quo warranto proceedings “may be made by leaving a copy at the last residence or business office of the defendant or defendants, and service so made shall be deemed a legal service.” This, we apprehend, means a true copy of the summons and complaint.

If the copy of summons left at defendant’s residence be a true copy of the original, then the summons was fatally defective, for it was neither signed by the clerk nor under seal. It is provided by C. S., 476,, that “summons must ... be signed by the clerk,” and if addressed to the sheriff or other officer of a county other than that from which it is issued, it “must be attested by the seal of the court.” The omission of the seal from the copy may not have been capitally important. Elramy v. Abeyounis, 189 N. C., 278, 126 S. E., 743. But the signature of the clerk is an essential part of the summons. McArter v. Rhea, 122 N. C., 614, 30 S. E., 128; Perry v. Adams, 83 N. C., 266; Taylor v. Taylor, ibid., 118; Freeman v. Lewis, 27 N. C., 91; Finley v. Smith, 15 N. C., 95; Seawell v. Bank, 14 N. C., 279; Shackleford v. McRae, 10 N. C., 226; Buchannan v. Kennon, 1 N. C., 593.

On the other hand, if the copy of summons left at defendant’s residence be not essentially a true copy of the original, then it would be insufficient under the statute, for only by virtue of C. S., 881, is substituted service allowable in this way. Dowling v. Winters, supra.

There was no request to amend nunc fro■ tunc, as in Casualty Co. v. Green, 200 N. C., 535, 157 S. E., 797; Calmes v. Lambert, 153 N. C., 248, 69 S. E., 138; Vick v. Flournoy, 147 N. C., 209, 60 S. E., 978; Cook v. Moore, 100 N. C., 294, 6 S. E., 795; Henderson v. Graham, 84 N. C., 496.

It also appears that the action was instituted without proper indemnity bond. Cooper v. Crisco, 201 N. C., 739, 161 S. E., 310; Midgett v. Gray, 158 N. C., 133, 73 S. E., 791; S. c., 159 N. C., 443, 74 S. E., 1050.

Error.