Turner v. . Holden

Mebuimon, C. J.: The Court had jurisdiction of the defendant by virtue of the service of the summons, the original process, and his appearance in the action. The action was not ended for all purposes when the plaintiff obtained his judgment; it remained, and remains, current for all proper purposes in the enforcement of the judgment by the ordinary execution and other appropriate means, including proceedings supplementary to the execution. The latter are not separate from and independent of the action; they are incident to and part of it; they constitute and are no more than a means allowed by the statute in the action whereby to reach the property of the defendant and enforce satisfaction of the judgment. Hence, they are not begun by original *185 process, a summons. The statute does not so provide. It (The Code, § 488) prescribes that the judgment creditor, “at any time after such return made (return of the. ordinary execution), and within three years from the time of issuing the execution, is entitled to an order from the Court to which the execution is returned, or from the Judge thereof, requiring such debtor to appear and answer concerning his property before such Court or Judge, at a time and place specified in the order, within the county to which the execution W'as issued.” Although the statute does not in terms prescribe that notice of such order shall be given, still its nature, purpose, practice and justice require that notice shall be given for such time as the Court shall deem just. Weiller v. Lawrence, 81 N. C., 65. Such notice must be so given and served upon the party to be notified, in the way prescribed for giving and serving notices in actions. The statute (The Code, §597) provides that “ notices shall be in writing; notices and other papers may be served on the party or his attorney personally, where not otherwise provided in this chapter.” One of the methods provided (the same §, ¶ 2) prescribes that “if (service) upon a party, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion.” Service thus made is sufficient. The Court has jurisdiction in cases like this of the party to the action, and it is deemed sufficient to give him notice in the way prescribed of any motion or proceeding in the action. It is the duty of parties to actions to be on the alert at all times, until the same shall be completely ended. If it should turn out that a party was prejudiced in that he did not actually get the notice, the Court would, in a proper case, afford relief. In the present case, the order, so far as appears, was regularly granted and the service of notice thereof on the defendant w7as sufficient. The Court clearly had pow’er to allow *186 the Sheriff to amend his return, .and the return, as amended, shows that the notice to the defendant was served by leaving a copy of. the order for him at' his' residence at the hour specified — that it was left with his wife. She surely was a person of “ suitable age and discretion ” to deliver the notice to him, her husband, and the inference is that she did so. If he did not, in fact, get the notice, then his remedy is not to move to dismiss the proceeding, but to ask for reasonable time to answer, as the law requires. As the Court had jurisdiction of the defendant, and the notice had been duly served, the motion of his counsel to be allowed to appear for the purpose of a motion to dismiss the proceeding, was not pertinent, and was properly denied. No question is presented here as to the sufficiency of service of notice upon an attorney. The Court held properly that the notice, had been duly served. This was sufficient; it did not need to further state, as a ground of its order, that “the Clerk’s finding and ruling that the said attorneys appeared generally on said 11th of May, 1891, was final and conclusive,” etc. The action of the Clerk was not final and conclusive. In a proper case, on appeal to him, it would be the duty of the Court to review the findings of fact by the Clerk and correct his errors of law. He was no more than the servant of the Court, and subject to its supervision in the way prescribed by the statute (The Code, § 251, et seq.;) Bank v. Burns, 107 N. C., 465. The Court (the Judge) did not need to grant the writ of certiorari to compel the Clerk to state the case on appeal, as allowed by the statute (The Code, § 254); he might have directed the Clerk to do so by mere order. The plaintiff moved to dismiss the appeal to this Court, and we' are of opinion that the motion must be allowed. The order appealed from was incidental, and no more, at most, than interlocutory. To deny the defendant’s motion could not seriously prejudice him or impair any substantial right *187 he might have. The Court simply decided that he had been duly served with notice, and was before it for pertinent and proper purposes. If the notice had not been properly served, the Court would simply have directed a reasonable delay of proceedings, or that a new notice issue forthwith to be served within a day specified. Weiller v. Lawrence, supra. Appeals to this Court do not lie from every order in the course of an action. This has been decided in many cases, and the Court has repeatedly pointed out when an appeal does and does not lie. Appeal dismissed.