Bethell v. . Lee

BbogdeN, J.- The vital question of law presented by the record is whether the attachment proceedings in the case of F. B. Lee v. Geo. W. Bethell were valid. Attachment is a statutory remedy in derogation of common law, and hence must be strictly construed. Notwithstanding, substantial compliance with the requirements of the statute is sufficient. Best v. British & American Co., 128 N. C., 351; Page v. McDonald, 159 N. C., 38. It is to be noted that the summons in the attachment suit was returned by the sheriff “not to be found in Rockingham County.” Nothing else appearing, this return would be insufficient to support a service of summons by publication because C. S., 484, requires that it must appear to the satisfaction of the court by affidavit that' the person to be served “cannot after due diligence be found in the State.” Sawyer v. Drainage District, 179 N. C., 182. But was a summons necessary in the first instance? The record discloses that at the time of instituting the suit on 4 June, 1921, the plaintiff Lee filed a verified complaint and two affidavits. The verified complaint alleges that the defendant, Geo. "W. Bethell, was a resident of the State of Virginia, residing in the city of Norfolk. In one affidavit it was stated that said defendant was a “nonresident of the State of North Carolina and is beyond the reach of process issuing from the courts of said State.” In another affidavit filed at the same time, it was stated “that the said Geo. W. Bethell is a nonresident of the State of North Carolina and has been for several years.” The principle of law applicable to such facts is clearly stated by McIntosh in North Carolina Practice and Procedure, section 800, page 926, as follows: “But where it clearly appears to the court, by affidavit, that the defendant is nonresident and cannot be personally served, the affidavit and order for publication will take the place of the summons, and this to be followed by seizure of property, and publication gives the court jurisdiction, without going through the useless formality of issuing a summons and having the sheriff make the return that the defendant is not to be found.” The text is wholly supported by the au *759 thorities cited, to wit: Grocery Co. v. Bag Co., 142 N. C., 174; Mills v. Hansel, 168 N. C., 651; Jenette v. Hovey & Co., 182 N. C., 30. See, also, Mofon v. Cressey, 193 N. C., 568; Lemly v. Ellis, 143 N. C., 200; Hess, Rogers & Co. v. Brower, 76 N. C., 428; Luttrell v. Martin, 112 N. C., 593. Tbe affidavit in tbe case at bar states tbat tbe cause of action is for breach of contract for money bad and received; tbat tbe defendant bad been a nonresident of the State for several years and is a resident of tbe State of Virginia and not subject to tbe process of tbe courts of North Carolina. Tbe notice of summons and warrant of attachment states tbat tbe cause of action is to recover a specific sum for money bad and received, and also sets out tbe time and place of tbe return of summons and warrant of attachment. IJpon tbe whole record tbe court is of tbe opinion tbat a substantial compliance with tbe statutes is disclosed and tbe judgment is Reversed.