Raleigh Banking & Trust Co. v. Nowell

ClakksoN, J. C. S., 921, is as follows: “When a notice issues to tbe sheriff, bis return thereon that tbe same has been executed is sufficient evidence of its service.” See cases cited under tbis section. In Lake Drainage Comrs. v. Spencer, 174 N. C., at page 37-8, it is said: “While this is one of the States in which the return on the process is not conclusive, even between the parties and privies to the action, Still, under Revisal, 1529 (C. S., 921, supra) and the authorities above cited, such return is prima facie correct, and cannot be set aside unless *451 the evidence is ‘clear and unequivocal.’ 32 Cyc., 517. It would work the greatest mischief if after a judgment is taken it could be set aside upon the slippery memory of the defendant, perhaps years thereafter, that be bad not been served. This would shake-too many titles that rest upon the integrity of judgments and the faith of purchasers and others relying thereon. The return of the sheriff is by a disinterested person acting on oath in his official capacity and made at the time.” Caviness v. Hunt, 180 N. C., 385; Long v. Rockingham, 187 N. C., 199; Fowler v. Fowler, 190 N. C., 536. The statement of the case on appeal shows “That said motion came on to be beard before bis Honor, Judge A. M. Stack, on 8 October, 1927, by consent of plaintiff and defendants.” . . . “His Honor, Judge A. M. Stack, thereupon stated in open court that be would find tbe fact that summons was not served, and that be would render judgment setting aside tbe judgment against H. H. Nowell hereinbefore entered in this action, to which tbe plaintiff, tbe Raleigh Banking & Trust Company, in open court gave notice of exception and appeal.” Tbe record shows that tbe evidence was all beard by tbe court below on 8 October, and tbe judgment rendered on that day, but not actually signed until 12 October, tbe following week during a term of criminal court of "Wake County, which was duly held by tbe same judge. We can see nothing prejudicial in signing in writing the judgment of 12 October, rendered on 8 October, 1927. The exception and appeal was taken to the judgment as rendered on 8 October. The signing later was a mere matter of convenience, no rights affected. Tbe judgment put in writing was the same as rendered. From a careful inspection of tbe record, we think that the evidence is “clear and unequivocal,” that the summons was not served according to law. It has been held in this jurisdiction that a return of a sheriff of the service of a writ cannot be contradicted by the defendant’s affidavit that the writ was not served. The return is prima facie true and cannot be contradicted by a single affidavit. The service of process or other papers are very serious matters and should not be set aside lightly. They import verity. Hunter v. Kirk, 11 N. C., 277; Mason v. Miles, 63 N. C., 564; Strayhorn v. Blaylock, 92 N. C., 292; Chadbourn v. Johnston, 119 N. C., 282; Comrs., v. Spencer, supra; Caviness v. Hunt, supra. For the reasons given, tbe judgment is Affirmed.