Ditmore v. Goins.

CLARK, J., dissenting. The summons and warrant of attachment were sued out, and issued by the Justice of the Peace on 6 December, 1898. The summons was returnable on 10 December, 1898, and the warrant on 5 January, 1899. On 10 December, (326) the return day of the summons, the Sheriff returned the summons to the Justice, endorsing thereon "due search made and the defendant not found in my county." No alias summons was sued out, nor was there an order made by the Justice for the service of a summons by publication. The affidavit, as required, was made for obtaining the warrant, which was duly issued and served by levy upon personalty and realty. The publication of the warrant, which was signed by the plaintiff, was made for four weeks, as is required for the publication of the warrant by section 350 of The Code.

Upon the return day of the warrant, 5 January, 1899, the Justice proceeded to try the action upon the plaintiff's cause of action (the defendant not appearing,) and rendered judgment in favor of the plaintiff against the defendant for the amount sued upon.

Thereafter, the defendant moved in the Justice's court to set aside and vacate the judgment. Upon the hearing of the motion, the Justice denied the same, and defendant appealed to the Superior Court. Upon the hearing before his Honor, he reversed the Justice and rendered judgment in favor of the defendant, vacating and setting aside the Justice's judgment, from which judgment the plaintiff appealed to this Court.

Under our system of practice, no party can be brought into Court except by a service of the summons upon him (unless he voluntarily appears). Service must be made upon him personally if he can be found in the State, or by publication, neither of which was done in this case (nor did the defendant voluntarily appear). The manner of service is plainly prescribed in sections 214, 217, 218, and 219 of The Code. It is well settled that any judgment rendered in an action without service of the summons is absolutely void — is a nullity — and will be so treated whenever and wherever introduced. White v. Albertson, 14 N.C. 241, 22 Am. Dec., 19; Jennings v. Stafford, 23 N. (327) C., 404; Stallings v. Gulley, 48 N.C. 344; Doyle v. Brown, 72 N.C. 393; McKee v. Angel, 90 N.C. 60;Harrison v. Harrison, 106 N.C. 282, and other cases.

The issuance and service of a summons in an action are indispensable to a valid judgment. Before a court can render an order or judgment disposing of a person's property, it must give him such notice as is required by law, to the end that he may come into court and assert his rights; and the rules and requirements regulating the issuance and service of such notice (by summons) must be strictly complied with. In actions within the jurisdiction of a Justice of the Peace, the summons must be signed by the Justice, run in the name of the State, directing the officer to summon the defendant at a time therein named, not exceeding thirty days from its date (Code, section 832); and in the event of service by publication, a notice must be published in any one or two newspapers most likely to give notice to the person to be served, not less than once a week forsix weeks, giving the title, purpose, etc. (Code, sections 219 and 840, Rule 15), which must be under authority of an order made by the Justice, based upon an affidavit (Code, section 218). The publication of the warrant of attachment does not serve this purpose. But in attachment proceedings under section 352 of The Code, as amended by Laws 1893, chapter 363 (Clark's Code, page 415), when the warrant is taken out at the time of issuing the summons, and the summons is to be served by publication, the order shall direct that notice be given in the saidpublication to the defendant of the issuing of the attachment. Said publication shall state the names of the parties, the amount of the claims, and, in a brief way, the nature of the demand, and the time and place to which the warrant is returnable, and also provides that in attachment proceedings in a Justice's court, advertisement in a newspaper shall (328) not be necessary, but advertisement at the courthouse door and four other public places in the county for four successive weeks shall be sufficient publication, both as to the summons and warrant of attachment. This modification permits the incorporation of the warrant of attachment to be made in the summons, not the summons in the warrant. The summons in an official process, and must be signed and issued by the Justiceof the Peace, whether its service is to be made personally or by publication, while the warrant, if not incorporated in the summons as above provided, is not official and may be signed by the plaintiff himself as above cited, and if not taken out at the time of issuing the summons, has to be served separately as provided in said section.

In this case the warrant of attachment was signed by the plaintiff, as was prescribed in the C. C. P., before the passage of the act of 1870-1, chapter 166, section 3 (which is now section 352 of The Code as amended by acts 1874-5, chapter 111, section 2, and acts 1893, chapter 363), and did not then serve as a process to bring the parties into Court, but was only intended to give notice that a warrant of attachment had issued in the cause.

An attachment is not the foundation of an independent action, but is an ancillary and auxiliary remedy collateral to the action. Marsh v. Williams, 63 N.C. 371; Toms v. Warson,66 N.C. 417. Its function is to seize the property of a defendant and hold it within the grasp of the law until the trial can be had and the rights of the parties determined, or it may be released pending the action if seized without proper cause. In no sense is it a process to bring the defendant into Court. It may be issued to accompany the summons, or at any time thereafter. Code, section 348. Notice of the same must be published within thirty days after its issuance for only four successive weeks, and at the courthouse door and four (329) other public places in the county (Code, section 350), and may be signed by the plaintiff. Code, section 909, Form 16.

In this case the summons was not served at all, which fully appeared thereon when returned to the Justice's court on the return day 10 December, 1898. No alias summons was sued out (Code, section 205), and the failure to do so worked a discontinuance of the action. Fullbright v. Tritt,19 N.C. 491; Webster v. Laws, 86 N.C. 178.

The trial had on 5 January, 1899, was without authority of law, and the judgment rendered was absolutely void, and his Honor should have so held. With this modification, there is

No error, and petition dismissed.