Voehringer v. . Pollock

30 S.E.2d 374, 224 N.C. 409, 1944 N.C. LEXIS 379

• Court: Supreme Court of North Carolina
• Decided: June 2, 1944
• Status: Published

Opinion

DeNNY, J.

The appellants contend there was irregularity in the issuance and return of the summons in this action, as well as a defective^ levy of the warrant of attachment.

Under the decisions of this Court, where service is by attachment of property and publication, no summons is required. In such cases it is considered a useless formality to issue a summons and have the sheriff make the return that the defendant is not to be found. Bethell v. Lee, 200 N. C., 755, 158 S. E., 493; Mohn v. Cressey, 193 N. C., 568, 137 S. E., 718; Jenette v. Hovey, 182 N. C., 30, 108 S. E., 301; Mills v. Hansel, 168 N. C., 651, 85 S. E., 17; Grocery Co. v. Bag Co., 142 N. C., 174, 55 S. E., 90; Best v. Mortgage Co., 128 N. C., 351, 38 S. E., 923; McIntosh on Procedure, 926. Hence, in the instant case it was unnecessary to have a summons issued.

The regularity of the issuance of the warrant of attachment is not challenged, but the appellants contend that a sheriff cannot make a valid levy under a warrant of attachment on real property without going on the property. This contention cannot be sustained. When a warrant of attachment is directed to a sheriff, he is liable for the execution of . the process in the same manner as prescribed by law for a levy under an execution. G. S., 1-449; C. S., 807. A levy on real property is made effective by the endorsement thereof on the execution or warrant of attachment. The jurisdiction of the court derived from a levy under a warrant of attachment dates from the levy, but the lien becomes effective as to third parties, when certified to the clerk of the Superior Court and indexed in the manner, prescribed in the statute. G. S., 1-449; C. S., 807. In re Phipps, 202 N. C., 642, 163 S. E., 801; Evans v. Alridge, 133 N. C., 378, 45 S. E., 772; Pemberton v. McRae, 75 N. C., 497; Bland v. Whitfield, 46 N. C., 122; McIntosh on Procedure, 934 and 936.

The appellants further contend that since the warrant of attachment was issued 18 February, 1944, and a levy thereunder was attempted on the same day, the order of publication of service should have been obtained at the time the warrant of attachment was issued and not on 3 March, 1944. It would have been proper, under the facts set forth in this record, to have obtained the order of publication at the time of the issuance of the warrant of attachment; however, the delay from 18 February, 1944, to 3 March, 1944, did not oust the jurisdiction of the court, which it obtained when the levy was made. Jenette v. Hovey, supra; Mills v. Hansel, supra.

The appellants insist they are residents of the city of Asheville, Buncombe County, North Carolina, and that their absence from the State is temporary, and that service by publication is null and void. In view of the facts set forth in the record, the decision of the court to the effect that the appellants are nonresidents within the meaning of the attachment statute, is in accord with the decisions of this Court. See Brann v. Hanes, 194 N. C., 571, 140 S. E., 292, and the cases cited therein.

It is further contended by the appellants that this is an action in per-sonam and that constructive service by publication is ineffective for any purpose. We do not so hold. An action for specific performance under our statute authorizing service by publication is in the nature of an action in rem, and a contract for the conveyance of real property may be enforced against a nonresident. In such cases the court has the power to determine who is entitled to the property and to vest title by decree in the party entitled to the same. G. S., 1-98; C. S., 484; Foster v. Allison Corp., 191 N. C., 167, 131 S. E., 648; White v. White, 179 N. C., 592, 103 S. E., 216; Bynum v. Bynum, 179 N. C., 14, 101 S. E., 527; Johnson v. Whilden, 166 N. C., 104, 81 S. E., 1057; Lawrence v. Hardy, 151 N. C., 123, 65 S. E., 766; Vick v. Flournoy, 147 N. C., 209, 60 S. E., 978; Long v. Insurance Co., 114 N. C., 465, 19 S. E., 347; Watters v. Southern Brighton Mills et al., 168 Ga., 15, 147 S. E., 87; Boswell’s Lessee v. Otis et al., 9 Howard, 336, 13 Law Ed., 165; Pennoyer v. Neff, 95 U. S., 714, 24 Law Ed., 565.

The judgment of the court below is

Affirmed.