Whitehurst v. . Anderson

44 S.E.2d 358, 228 N.C. 787, 1947 N.C. LEXIS 536

• Court: Supreme Court of North Carolina
• Decided: October 8, 1947
• Status: Published

Opinion

Per Curiam.

Tbe question posed for decision is tbis: Where a summons in proper form, together witb an order extending tbe time for filing complaint, is served on tbe defendants, but such order does not state tbe nature and purpose of tbe suit as provided by Gr. S. 1-121, is tbe service fatally defective and therefore insufficient to bring tbe defendants into court, or is such defect a mere irregularity subject to correction by amendment?

Tbe Court, one member not sitting, being evenly divided in opinion as to tbe correct answer, tbe judgment of the Superior Court is affirmed, accordant witb tbe usual practice in such cases, and stands as tbe decision in tbis case, without becoming a precedent. Toxey v. Meggs, 216 N. C., 798, 4 S. E. (2d), 513; Howard v. Coach Co., 216 N. C., 799, 4 S. E. (2d), 616.

Affirmed.