Webster v. . Sharpe , 116 N.C. 466 ( 1895 )

This is an action of slander in which plaintiff alleges that defendant falsely charged him with breaking into defendant's store and taking his goods. Defendant answered denying the allegations in plaintiff's complaint, and pleaded the statute of limitations. On the trial three issues were submitted to the jury — one as to whether defendant uttered the slanderous words as alleged, another as to the statute of limitations, and the third as to the amount of damages.

All the evidence tended to show that defendant's store was broken into on the night of 31 December, 1892, and the summons bears date (471) 30 May, 1893. But it was contended by defendant that in fact it was not issued until 10 July, 1893.

If the summons was issued at the time it bears date, it was in time. But if it was not issued until 10 July, it was not in time, and the statute of limitations was a bar.

The presumption is that it issued at the time it bears date, and the burden is on defendant to show that it did not. To do this defendant introduced the clerk and the sheriff, and their testimony tended to show that the summons did not issue at the time it bears date, and that as a matter of fact it was not issued until 10 July, 1893.

An action is commenced by issuing a summons. Code, sec. 199. And an action is commenced when a summons is issued against a defendant. Code, sec. 161. This involves the question as to what is meant by the word "issue," and we are of the opinion that it means going out of the hands of the clerk, expressed or implied, to be delivered to the sheriff for service. If the clerk delivers it to the sheriff to be served, it is then issued; or if the clerk delivers it to the plaintiff, or some one else, to be delivered by him to the sheriff, this is an issue of the summons; or, as is often the case, if the summons is filled out by the attorney of plaintiff, and put in the hands of the sheriff. This is done by the implied consent of the clerk, and in our opinion constitutes an issuance from the time it is placed in the hands of the sheriff for service. But a summons simply filled up and lying in the office of an attorney would not constitute an issuing of the summons, as provided for in The Code. Nor would the fact that a summons was filled up and held by the clerk for a prosecution bond (as the evidence in this case tends to show was the fact) constitute the issuing of a summons, until the bond is given, or at least until it goes out by the consent of the clerk for the (472) purpose of being served on the defendant. This being so, we see no error in the judge's charge on the question as to when the summons issued and the statute of limitations.

The jury finds the first issue for the defendant — that he did not utter the defamatory words as alleged by plaintiff. And plaintiff excepts to the judge's charge on this issue. But no error is pointed out in the exception, and we see none.

Judgment affirmed.

Cited: Currie v. Hawkins, 118 N.C. 600; Houston v. Thornton,122 N.C. 375; McClure v. Fellows, 131 N.C. 511; Smith v. Lumber Co.,142 N.C. 31; Grocery Co. v. Bag Co., ib., 181; Emry v. Chappell,148 N.C. 330; McKeithen v. Blue, 149 N.C. 98; McCall v. Sustair,157 N.C. 183; Carson v. Woodrow, 160 N.C. 146; Cotten v. Fisher's Co.,177 N.C. 60.