Scott v. . Jarrell

AlleN, J. It is not necessary to pass on the power of the court to amend the summons, as the plaintiff declined to ask for an amendment, and elected to abide by the summons as issued. The statute provides (Eev., sec. 434) that “If any summons shall be issued within less than ten days of the beginning of the next term of the Superior Court for the county in which it is issued, it shall be made returnable to the second term of said court next after the date of its issuing, and shall be executed and returned by the proper officer accordingly,” and the summons is in direct contravention of its terms and at least irregular. As was said in Stafford v. Gallop, 123 N. C., 23, “The object of service of process is to advise the defendant of the plaintiff’s action, and that he must appear at the time and place named and make his defense, and in default therein judgment will be prayed,” and by the writ in this ease the defendant was notified to appear at a time and place other than that required by the statute. Treating it as irregular-and not void process, the case of S. v. Johnson, 109 N. C., 852, furnishes an analogy. In that case the notice of appeal from a justice to the Superior Court was defective, and a motion to dismiss for that reason was made and denied. Upon appeal to this Court the action was dismissed, although the power was recognized in the Superior Court to allow notice of appeal to issue upon the motion to dismiss being made. No request for the exercise of the power having been made, and the writ being in violation of the language of the statute, the action was properly dismissed. Affirmed.