Elramy v. . Abeyounis

Adams, J. The summons is served by the delivery of a copy thereof to the defendant, and if addressed to the sheriff or other officer of a county other than that from which it is issued it must be attested by the seal of the court. C. S., 476, 479. In this case the original summons bore the proper seal and the copy purported to have been attested in like manner. The copy included every material part of the original except the seal, the omission of which, not affecting the substance of the writ, did not impair the efficacy of the service or in any way mislead or prejudice the defendant. In affixing the seal the object is to evidence the authenticity of the summons, but the seal is not a part of the summons in the sense that its impress upon the copy is essential to the validity of the original. Vick v. Flournoy, 147 N. C., 209; 21 R. C. L., 1325 (73); Lyon v. Baldwin, L. R. A., 1917, ch. 148 and annotation 154; 32 Cyc., 460. For several days after he had been served with summons the defendant remained at his home in Monroe without filing his answer or consulting an attorney. He then went to New York and there had a conference with Abeyounis who conducted a mercantile business in Pitt County. Abe-younis promised upon his return home to file an answer to the complaint and the defendant relied upon this promise. It is contended that the failure to file the answer was due to the defendant’s excusable neglect, and as he had a meritorious defense the judgment should have been set aside. When the conference took place in New York Abeyounis had not been served with process. Indeed, he has never been served with process, or otherwise brought into court. His interest was diametrically opposed' to that of the defendant. It was evidently his purpose to say nothing, to await judgment by default against the defendant and thereby to escape liability. In this enterprise he was successful. It is not difficult to perceive that the defendant in intrusting his business to one whose interest in the litigation was adverse to his own did not exercise such *281 diligence as a man of ordinary prudence should have exercised under the circumstances. In this respect the present case is easily differentiated from Nicholson v. Cox, 83 N. C., 49; Sikes v. Weatherly, 110 N. C., 131, and Nash v. Treat, 30 Anno. Cas., 1913 ed., 752. His Honor, we think, very properly held that no excusable neglect had been shown. Morris v. Ins. Co., 131 N. C., 212; Pepper v. Clegg, 132 N. C., 312; Osborn v. Leach, 133 N. C., 428; Shepherd v. Shepherd, 180 N. C., 494. A copy of the complaint was served with summons and five days after the time for filing an answer had expired the defendant’s attorney deposited in the clerk’s office a paper purporting to be the joint answer of the defendant and Abeyounis. As the clerk had no power to extend the time for filing the answer (Lerch v. McKinne, 187 N. C., 419) and no other order authorizing such extension was shown the purported filing of the paper did not deprive the plaintiff of his right to judgment. Neither Cahoon v. Everton, 187 N. C., 369, nor Roberts v. Merritt, ante, 194, is authority for the defendant’s position that the plaintiff treated the answer as filed and waived his right to a judgment. ■The judgment is Affirmed.