Foster v. Holt

75 S.E.2d 319 (1953) 237 N.C. 495

FOSTER
v.
HOLT et al.

No. 386.

Supreme Court of North Carolina.

April 8, 1953.

Ottway Burton, Asheboro, for plaintiff, appellant.

H. M. Robins, Asheboro, for defendants, appellees.

DENNY, Justice.

The method of serving process on a non-resident as provided in G.S. §§ 1-105 and 1-106, is ineffective to obtain service of process on a citizen and resident of this State while such citizen is residing temporarily outside the State, or is in the armed services of the United States and stationed in another State or foreign country.

Therefore, at the time Judge Hatch dismissed this action as to the defendant Carl Thomas Holt, at the October Term, 1952, of the Superior Court of Randolph County, the infant defendant Carl Thomas Holt had not been served with legal process. However, the plaintiff contends that Judge Hatch was without authority to dismiss the action since at the time he made his ruling and entered his order, there was outstanding a valid alias summons and that the time for its service had not expired. Be that as it may, no exception was entered to the ruling or appeal taken therefrom. Hence, the action was terminated at that time as to Carl Thomas Holt and it is now too late to challenge the validity of the ruling. Phipps v. Pierce, 94 N.C. 514; Ferrell v. Thompson, 107 N.C. 420, 12 S.E. 109, 10 L.R.A. 361; Barber v. Buffaloe, 122 N.C. 128, 29 S.E. 336; Harrison v. Dill, 169 N.C. 542, 86 S.E. 518; State v. Bittings, 206 N.C. 798, 175 S.E. 299; Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E.2d 179.

On the motion to strike, the rule laid down in Winders v. Hill, 141 N.C. 694, 54 S.E. 440, and followed in Revis v. City of Asheville, 207 N.C. 237, 176 S.E. 738, and other cases, is applicable here. In the Winders case [141 N.C. 694, 54 S.E. 443], this Court said: "The function of a complaint is not the narration of the evidence but a statement of the substantive and constituent facts upon which the plaintiff's claim to relief is founded. The bare statement of the ultimate facts is all that is required, and they are always such as are directly put in issue. Probative facts are those which may be in controversy but they are not issuable. Facts from which the ultimate and decisive facts may be inferred are but evidence and therefore probative. Those from which a legal conclusion may be drawn and upon which the right of action depends, are the issuable facts which are proper to be stated in a pleading. The distinction is well marked in the following passage: ``The ultimate facts are those which the evidence upon the trial will prove and not the evidence which will be required to prove the existence of those facts.' Wooden v. Strew, 10 How.Prac. 48; 4 Enc. of PI. & Pr. p. 612."

In McIntosh, North Carolina Practice and Procedure, § 379, page 389, it is said: "The material, essential, or ultimate facts upon which the right of action is based should be stated, and not collateral or evidential facts, which are only to be used to establish the ultimate facts. The plaintiff is to obtain relief only according to the allegations in his complaint, and therefore he should allege all of the material facts, and not the evidence to prove them, * * *." Hawkins v. Moss, 222 N.C. 95, 21 S.E.2d 873; Truelove v. Durham & Southern R. Co., 222 N.C. 704, 24 S.E.2d 537.

The judgment of the court below is affirmed.

Affirmed.