Lindsay v. . Short

Schenck, J. “The right to dismiss an action for want of jurisdiction by entering a special appearance for the purpose is imbedded in our procedure.” Smith v. Haughton, 206 N. C., 587. It is provided by the statute, section 491 (a), N. C. Code of 1935. (Micbie), that the acceptance by a nonresident of the right and privilege to operate a motor vehicle on the public highways of the State “shall be *288 deemed, equivalent to the appointment by such nonresident of the Commissioner of Revenue . . . to be bis true and lawful attorney upon whom may be served all summonses or other lawful process in any action or proceeding against him, growing out of any accident or collision in which said nonresident may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle on such public highway of this State, and said acceptance or operation shall be a signification of his agreement that any such process against him shall be of the same legal force and validity as if served on him personally.” We are of the opinion, and so hold, that the foregoing statute does not embrace an action for abuse of process in having the plaintiff arrested. An action for abuse of process cannot be said to be an action growing out of any accident or collision in which the defendant was involved by reason of the operation by him, for him, or under his control or direction, of a motor vehicle on a public highway of this State. The action for abuse of process not being embraced in the statute, the service of summons upon the Commissioner of Revenue was void in so far as such action is concerned, and the judgment of the Superior Court upholding such service is Reversed.