Mount Airy Hotel Co. v. Robert Mitchell Furniture Co.

Jackson, Chief Justice.

[A fi. fa. was levied upon the property of the hotel company, and the president thereof made the following affidavit of illegality:.

“Before me personally came C. H. Sutton, who, being duly sworn, says on oath that he is the president of the Mount Airy Hotel Company, and that he believes that a certain fi. fa., issueS from the superior court of said county, in favor of the Bobert Mitchell Furniture Company vs. the Mount Airy Hotel Company, and now levied on the property of said company, is illegal, upon the following grounds, to wit: •

“First, there was no service of the writ in said case upon the Mount Airy Hotel Company by serving a copy in person upon the president, or any officer or agent of said company as such, nor by leaving a copy of said writ at the place of transacting the usual and ordinary public business of said company in said county, and that there was an officer of said company, residing in said county, at the time of the commencement of said suit, to-wit, the president of said company; that said corporation did not appear and plead, nor acknowledge service in any way, in said case; that, according to the return of the sheriff, the only service in said case, was by serving a copy of said writ on M. C. Wilcox, at a hotel in Mount Airy, which this deponent believes was not sufficient to bind said company by the judgment rendered in said cause.”

The plaintiffs counsel demurred ore temis to this affidavit. It was dismissed, and defendant excepted. In certifying the bill of exceptions, the judge added the following note :

“ The office of the Mount Airy Hotel Company, by the charter, is fixed at Mount Airy, and Mr. Wilcox was an officer of the company, and the general superintendent. These facts were stated, and, as I understand, were admitted to be true; while the deputy sheriff stated that his entry of service was dictated by Judge Sutton, president of the company. With the above note, I certify the bill of exceptions to be true.”]