Pettigrew v. . McCoin , 165 N.C. 472 ( 1914 )

AlleN, J.

Tbe question presented by this appeal is whether an action is pending from tbe issuing of tbe summons or from its service.

There is a diversity, but not necessarily a conflict, of opinion on tbe point, due to tbe fact that it is held in some States that tbe action is commenced when tbe complaint is filed, in others when tbe process is issued, and in others when tbe process is served (1 A. and E. PI. and Pr., 119), and this apparent conflict in tbe decisions as to tbe time of tbe commencement of tbe action seems to have originated in tbe difference in tbe rule at law and in equity, before tbe Code practice was adopted.

“At common law the suit was considered as pending from the issuance of the writ; in equity the writ was issued after bill filed., and the suit regarded as -commenced from the time of the service of the writ.” Handlon v. Handlon, 37 W. Va., 491.

The authorities seem, however, to agree that the action is pending from the time of its commencement (1 A. and E. Enc. PL and Pr.), and our statute (Rev., sec. 359) declares in express terms that “An action is commenced as to each defendant when the summons is issued against him.” Pending is defined in Black’s Law Dictionary as “begun, but not yet completed; unsettled; undetermined. Thus an action or suit is said to be pending from its inception until the rendition of final judgment” ;- and as our statute fixes the inception of the action at the time of lawfully issuing the summons, we are of opinion it is thereafter pending.

The action has been commenced and is undetermined, and if not pending, the inquiry may well be made, Where is it, and what has become of it %

It is because of the pendency of the action that the courts-issue restraining orders, appoint receivers, issue warrants of attachment, and do other things before the service of summons.

We have found only two authorities in our State bearing directly on the case under consideration: Simmons v. Simmons, 62 N. C., 65, decided before the adoption of the Code of Civil Procedure, of which Rev., sec. 359, is a part, in which it is said: “It seems, therefore, to be settled that a suit is not pending until the return, or at least until service of process,” and Webster v. Laws, 86 N. C., 179, decided after the adoption of the Code.

In the last case the summons was issued by a justice on 9 August, 1879, and the cause tried on 20 August, 1879. The defense relied on was the pendency of another action, in which the summons had been issued before 9 August and was returnable on that day, but which had not been served. The judge in the Superior Court held that the first action was pending, and this ruling was reversed on appeal,.the Court saying: “We do not concur in the ruling that, upon the facts found, the first action was pending when tbe second, action was begun. The process not having been served, was exhausted on the day fixed for its return, and the action was in law then discontinued.”

If the action was discontinued on the return day, and not until that time, it would seem to follow that it was pending from the time of issuing the summons until the return day, although the summons had not been served.

We are therefore of opinion that the action in Yance County was pending at the time of the institution of the action in Durham, and so hold.

Eeversed.