Herndon v. Autry

Stacy, J.

At the request of the plaintiff, and without objection, the court finds as a fact that the defendant was and is a resident of North Carolina; that he did not conceal himself to avoid service of summons, and that no process has ever been served upon him in this cause. Therefore the original judgment entered by the justice of the peace should have been set aside and the warrant of attachment vacated upon proper motion. Lumber Co. v. Buhmann, 160 N. C., 385; Rackley v. Roberts, 147 N. C., 201; Carter v. Rountree, 109 N. C., 29.

The fact that defendant knew this action was pending and that his property had been attached and was advertised for sale was not sufficient to make him a party so as to conclude him by the judgment. McKee v. Angel, 90 N. C., 60. It has been held with us that service of process, where not waived, must be made in accordance with the requirements of the statute in order to be binding. Allen v. Strickland, 100 N. C., 225. Nor do we think the defendant is precluded from moving before the justice by his failure to appeal from the judgment within fifteen days after notice of its rendition. Lowman v. Ballard, 168 N. C., 16. This might have been otherwise had the proceedings been regular and proper service obtained. Thompson v. Notion Co., 160 N. C., 519.

The last paragraph of the judgment undertakes to protect the rights of the purchaser at the execution sale. This proyision affords no ground to the plaintiff for objection, and the defendant had not appealed. McDonald v. Hoffman, 153 N. C., 254; Harrison v. Hargrove, 120 N. C., 96.

Upon the record, we think the judgment of the Superior Court should be upheld.

Affirmed.