Atlantic Coast Line Railroad v. Singletary

Hill, J. Construing the first question propounded by the Court of Appeals to ask whether the facts recited therein, without more, as a matter of law, demand the inference that the plaintiff was guilty of laches in not prosecuting the issue made by the entry of service and the traverse thereto to an earlier determination, and in prosecuting the application to the court for an order designating the next succeeding term of court as the appearance term and directing the issue of a new process and the perfection of service returnable thereto, we answer this question in the negative. Under the first question propounded by the Court of Appeals, when the traverse to the return of the sheriff was filed, the plaintiff was entitled to a determination of that issue, even though there was an agreed statement of facts from which the court would be authorized to find as a matter of law that the service was not had upon the proper person; and where, immediately after such trial and judgment of the court finding that the service was not.good, an order for further service was requested, it can not be said that these facts without more, as a matter of' law, demand the inference that the plaintiff was guilty of laches in not prosecuting the issue on the traverse to an earlier hearing. This case is different in its facts from those cases where there was no return and entry of service, and several terms of court had elapsed before an order was asked for service. The answer to this question makes it unnecessary to answer the second question propounded by the Court Of Appeals, All the Justices concur. Bennet, Twüty & Reese and Drawdy & Huxford, for plaintiff in error. G. E. Hay and E. X. Wilcox, contra.