Grant v. . Burgwyn , 79 N.C. 513 ( 1878 )

^* SMITH, C. J., did not sit on the hearing of this case. The plaintiff as administrator with the will annexed of Edmund Jacobs, deceased, brought this action for a money demand, and the defendant moved to dismiss upon the ground that the summons which issued 18 June, 1877, returnable to Fall Term of said Court, was not served, and no alias was issued. His Honor found as a fact from the evidence that service had been made by publication. The defendants also moved to dissolve an attachment which had theretofore issued upon an affidavit made on 18 June, 1877, in which the plaintiff stated that a summons had been issued and returned not served — defendant not to be found, etc. — ; that defendant was a non-resident but had property in this State, and was indebted to plaintiff's testator in a certain amount for which a cause of action exists, etc. His Honor refused the motion and the defendants appealed. The defendants entered a special appearance and moved: (1) To dismiss the action because there was no (514) service of the summons returnable to Fall Term, 1877, and no alias issued. (2) To dissolve the attachment for want of sufficient affidavits. The attachment issued before said Fall Term. In regard to the first motion His Honor after setting out the evidence finds as a fact, that service was had by publication, and on examination of the whole record we think his finding was correct and his refusal of the motion is sustained. In regard to the second motion we are of the same opinion. The affidavit of 18 June, is in the very words of the statute and that must be sufficient. In looking at the whole record it appears that the statute on this subject has been substantially complied with.

Affirmed.

Cited: Best v. Mortgage Co., 128 N.C. 352; Page v. McDonald, 159 N.C. 41.