White v. . Underwood , 46 L.R.A. 706 ( 1899 )

The summons in this action and an order of arrest and bail ancillary thereto were served upon the defendant while confined in jail upon failure to give bond for his appearance to answer (27) a criminal charge for some secret assault. Code, sec. 131.

The sheriff has authority to serve process anywhere in his county, in jail as well as elsewhere. The jail possesses no "privilege of sanctuary." The reason for the exemption of witnesses and jurors from civil arrest (Code, secs. 1367 and 1735) and of nonresident parties and witnesses voluntarily attending court here from service of any civil process (Cooperv. Wyman, 122 N.C. 784), do not apply to parties arrested in criminal proceedings. Moore v. Greene, 73 N.C. 473. There is no public policy to encourage the latter.

In Davis v. Duffie, 1 Abb. Appeal, 486, it is said by the Court of Appeals of New York, affirming same case, 8 Bosw., 617: "It was decided inPhelps v. Phelps, 7 Paige, 150, that service upon a convict in a state prison, as in this case, was regular and valid to confer jurisdiction; and this has been the settled rule of law and practice both in England and in this country for a long period of time. 2 Madd., Ch. Pr., 200; 1 Hoff., Ch. Pr., 109; 1 Barb., Ch. Pr., 50. Even if Davis could be deemed civilly dead, as would have been his condition had he been sentenced to imprisonment for life (2 R. S. 701, sec. 20), still he would have been answerable to his creditors according to the usual practice of the courts. Chitty says: "This situation of civiliter mortuus is never allowed to protect him from the claims of private individuals or the necessities of public justice; so that although he can bring no action against another, he may be sued, and execution taken out against him.' See also remarks of Chancellor Kent inPlatner v. Sherwood, 6 John., Ch., 130. Indeed the decisions are uniform, that although the right of a convict to prosecute an action is suspended and his property in some instances forfeited, still he may be sued and the suit against him may be prosecuted to judgment."

(28) In Dunn's appeal (35 Conn. 82), it was held that where a defendant was in jail under sentence, leaving a copy of a paper at the jail was compliance with a statute requiring service by "leaving a copy at usual place of abode."

No complication can arise from the defendant's being under arrest at the same time in the criminal action and in this proceeding. The same condition arises whenever a defendant is under arrest on two or more criminal warrants. As long as he remains in jail on the warrant in the criminal action, he need give no bail in the civil action, and when released in one he has the opportunity to give bail in the other. If service of the order of arrest had been invalid, the motion for an alias order should have been allowed "at any time before judgment." Code, sec. 295.

In holding the service of summons and of the order of arrest and bail void, and in vacating the said order, there was error, and an appeal lay.Fertilizer Co. v. Grubbs, 114 N.C. 470.

Reversed.

(29)