Mintz v. . Frink

Winborne, J. The questions involved on this appeal are these: (1) Is service of summons on Sunday valid? (2) Does marking an original summons “alias” constitute it an alias summons? (3) When summons has been served on defendant on Sunday and when alias summons has not been issued within the time limited by statute, is defendant, by motion made on special appearance, entitled to have .the action dismissed for want of jurisdiction of person? (4) When defendant enters an appearance, designated special, and moves to dismiss the action not only for invalid service of summons, that is, want of jurisdiction of person, but also for lack of justification of plaintiff’s bond as security for costs, is the appearance general or special ? The law as established in this State answers the first and second questions in the negative, and the third in the affirmative. While as to the fourth the exact question has not been considered heretofore in this State, the rule of reason prompts us to hold the appearance is not general. (1) The statute, C. S., 3958, provides that “it shall not be lawful for any sheriff, constable or other officer to execute any summons, capias or other process on Sunday, unless the same be issued for treason, felony or misdemeanor.” See Bland v. Whitfield, 46 N. C., 122; Devries v. Summitt, 86 N. C., 126. Hence, in the present action service of original summons on Sunday is invalid and not binding on defendant. Having been so adjudged and the return having been stricken out at January Term, 1939, the status of the process was the same as if service had not been made. Hatch v. R. R., 183 N. C., 617, 112 S. E., 529. The plaintiff then had the right, given by statute, C. S., 480, to “sue out an alias . . . summons, returnable in the same manner as original process”— a right which could and must have been exercised at any time within ninety days next after the date of the original summons, 26 November, 1938. McGuire v. Lumber Co., 190 N. C., 806, 131 S. E., 274. (2) In order to preserve a continuous single action referable to the date of its institution the original ineffective summons must be followed by process successively and properly issued. Hatch v. R. R., supra, and McGuire v. Lumber Co., supra, and cases cited. An alias follows next *104 after the original. There should be something in the body of the second summons to indicate its alleged relation to the original. Hatch v. B. B., supra. The character of process purporting to be original is not changed by an endorsement of the word “alias.” Such endorsement forms no part of the record, and could not have the effect of changing the tenor from an original to an alias summons. See Simpson v. Simpson, 64 N. C., 427, as applied to executions. The issuance of a second summons in the form of an original, without something in the body of it to indicate its relation to the original, has the force and effect of initiating an independent action. (3) Section 481 of Consolidated Statutes of 1919 provides that “a failure to keep up the chain of summonses issued against a party, not served, by means of an alias or pluries summons, is a discontinuance as to such party; and if a summons is served after a break in the chain it is a new action as to such party, begun when the summons was issued.” See Hatch v. R. R., supra; Neely v. Minus, 196 N. C., 345, 145 S. E., 771. In the ease in-hand the service of summons being invalid and an alias as required by statute not having been issued, nothing else appearing, the action was discontinued at the expiration of ninety days next after the issuance of the original summons. The order of Harris, J., that the clerk issue an alias summons is merely directory, and does not and cannot have the effect of suspending the provisions of the statute. Likewise, after the expiration of period provided in the statute within which an alias summons can and must be issued, Stevens, J., was without authority to order an alias summons issued. Therefore, at September Term, 1939, upon the finding that the summons issued 12 January, 1939, was not in fact an alias summons, nothing else appearing, a discontinuance of the action as originally instituted should have been decreed. (4) However, plaintiff contends that, notwithstanding the right of defendant to appear specially to make the motion upon which the court struck out the erroneous return on the original summons and declared to be invalid the service as made, or to move to dismiss for lack of jurisdiction of his person, the defendant, by coupling in the motion the further purpose to dismiss the action for failure to justify plaintiff’s bond as security for costs, appeared generally. With respect thereto it is our view, and we hold, that the matter of moving to dismiss the action for failure to comply with statutory requirement, C. S., 493, relating to security for costs pertains to a procedural question, apart from the merits of the action, and such motion may be invoked as incidental to jurisdiction. The statute, C. S., 493, in effect provides that, unless plaintiff makes a deposit of cash therefor or obtain permission to sue in forma pauperis, *105 tbe clerk, before issuing summons, should require tbe plaintiff to give as security for costs “an undertaking witb sufficient surety in tbe sum of two hundred dollars, witb tbe condition that it will be void if tbe plaintiff pays all tbe costs which tbe latter recovers of him in tbe action.” Tbe sole object of tbe bond is to secure tbe defendant. Brittain v. Howell, 19 N. C., 107; Waldo v. Wilson, 177 N. C., 461, 100 S. E., 182. Failure of tbe clerk to require this may subject him to penalty. Dale v. Presnell, 119 N. C., 489, 26 S. E., 27. But this Court has uniformly held that tbe undertaking is not a condition precedent so as to make a summons void if it is not given. McIntosh P. & P., 331; Russell v. Saunders, 48 N. C., 432. The decisions are likewise uniform in bolding that if tbe summons be issued without tbe undertaking tbe defendant may make a motion to dismiss tbe action for such defect, but this motion must be made promptly. McIntosh P. & P., 331; Cooper v. Warlick 109 N. C., 672, 14 S. E., 106. Courts in only a few other jurisdictions have considered tbe identical question. In New York (Wendel v. Connor, 220 App. Div., 211, 221 N. Y. S., 10) and in Louisiana (Collier v. Morgan’s L. & T. R. and S. S. Co., 41 La. Ann., 37, 5 So., 37) tbe courts bold tbe appearance to be special, while in Nebraska (Healy v. Aultman, 6 Neb., 349, and Raymond Bros. v. Strine, 14 Neb., 236, 15 N. W., 350) and in Wisconsin (Stonach v. Glessner, 4 Wis., 288) tbe courts bold the appearance to be general. But see Kingsley v. Great Northern Ry. Co. (Wis.), 64 N. W., 1036, in which tbe Wisconsin Court bolds that where defendant asks that service of summons be set aside and that “tbe action be dismissed, witb costs,” and again, “witb costs of motion,” it must be construed as claim for only such costs as tbe court might properly grant on setting aside tbe service of tbe summons, and, therefore, was not a waiver of tbe objection, or a general appearance. Tbe New York decision is more convincing in that it is predicated upon a statute, sec. 237 of tbe Civil Practice Act of New York, which, in part, is identical witb our statute, C. S., 490, which provides that a “voluntary appearance of a defendant is equivalent to personal service of summons upon him.” Also in connection witb tbe New York decision it is significant to note that pertinent sections of tbe Civil Practice Act of New York provides that “tbe defendant . . . may require security for costs to be given, . . .” sec. 1522, and when this is done “tbe court ... or a judge thereof . . . must make an order requiring tbe plaintiff . . .” to make deposit or to file bond; “and staying all other proceedings on tbe part of tbe plaintiff, except to review or vacate tbe order, until tbe payment or filing, and notice thereof,” sec. 1524. Tbe judgment entered at September Term, 1939, is Eeversed.