Hatch v. Alamance Railway Co.

Adams, J.

Tbe legal right to recover damages for death caused by wrongful act did not exist at common law, and was first conferred in England by Lord Campbell’s Act, 9 and 10 Viet., cb. 93 (1846). Thereafter tbe main features of this statute were enacted by tbe General Assembly, and are now included in the Consolidated Statutes. Section 160 provides, in part, tbat when tbe death of a person is caused by tbe wrongful act, neglect, or default of another, . , . tbe person or corporation causing tbe death shall be liable to an action for damages to be brought by tbe personal representative of tbe deceased within one year after such death. Tbe words “to be brought within one year” have been interpreted, not as a statute of limitation, wbicb must be pleaded (O. S., 405), but as a condition annexed to tbe plaintiff’s cause of action; and at tbe trial tbe plaintiff must prove tbat bis action was instituted within tbe time prescribed by law. Taylor v. Iron Co., 94 N. C., 526; Best v. Kinston, 106 N. C., 206; Gulledge v. R. R., 147 N. C., 234; S. c., 148 N. C., 568; Hall v. R. R., 149 N. C., 109; Trull v. R. R., 151 N. C., 546; Bennett v. R. R., 159 N. C., 346.

At tbe bearing tbe defendant contended tbat tbe plaintiff’s action bad not been instituted within twelve months after tbe intestate’s death, and at tbe conclusion of tbe evidence sought a directed verdict both by motion and by written request. Tbe intestate’s death occurred on 22 January, 1918. Tbe original summons was issued on 13 January, 1919, and was' returnable to a criminal term of one week, beginning on 3' March. It was received by tbe sheriff on the day it was issued, but was not returned to the March term. In fact, it was not served, according to the officer’s certificate, until 10 April, and was then returned to the May term. On 10 April, upon affidavit filed by an attorney for the plaintiff, the clerk issued another summons against the defendant, returnable to the May term (26 May). This summons was indorsed “alias original,” but there was nothing else to indicate that it was intended for alias process; it was issued without an order from the judge, and "was served on 10 April and returned with the original summons to the May term. The act to restore the provisions of the Code of Civil Procedure in regard to process and pleadings went into effect 1 July, 1919.

An action is commenced as to each defendant when the summons is issued against him (C. S., 404, 475), but in actions in personam jurisdiction of a cause and of parties litigant can be acquired only by personal service of process within the territorial jurisdiction of the court, unless there is an acceptance of service or a general appearance) actual or constructive. Bernhardt v. Brown, 118 N. C., 701; Vick v. Flournoy, 147 N. C., 212; Warticle v. Reynolds, 151 N. C., 610; 21 R. C. L., 1315. The summons must be served on a corporation by the delivery of a copy thereof to one of certain designated officers or to a local agent (C. S., 483); and this requirement, it is held, must be strictly observed. Allen v. Strickland, 100 N. C., 226; Smith v. Smith, 119 N. C., 314; Lowman v. Ballard, 168 N. C., 18. In the ease last cited, Hoke, J., says: “Authority here is also to the effect that when a statute provides for service of summons or notices in the progress of a cause by certain persons or by designated methods, the specified requirements must be complied with or there is no valid service.” The case of Aaron v. Lumber Co., 112 N. C., 189, also is directly pertinent; and, indeed, is decisive of the question here presented. The constable in the township in which the defendant had its principal place of business served the summons by “handing” it to the president and the secretary and treasurer of the defendant. They were the only officers. They read the summons and returned it to the constable. The court held that since no copy of the summons was left with either officer, the pretended service was not legally sufficient. In Amy v. City of Watertown, 130 U. S., 317, Mr. Justice Bradley said: “The cases are numerous which decide that when a particular method of serving process is pointed out by the statute, that method must be followed, and the rule is especially exacting in reference to corporations,” and cites Kibbe v. Benson, 84 U. S., 624; Alexandria v. Fairfax, 95 U. S., 774; Settlemier v. Sullivan, 97 U. S., 444; Evans v. R. Co., 14 Mees. & W., 142; Walton v. Universal Salvage Co., 16 Mees. & W., 438; Brydolf v. Wolf, 32 Iowa, 509; Hoen v. A. & P. R. Co., 64 Mo., 561; Lehigh Valley Ins. Co. v. Fuller, 81 Pa., 398.

The appeal shows, not a technical irregularity in the service of the summons, but a total failure of the service of the first summons. The statute in plain terms requires the delivery of a copy of the summons, and provides that the proof of service shall be the certificate of the officer, the affidavit of the printer, or the written admission of the defendant.

Yery clearly, in our opinion, the interview between the sheriff and Hardin, the local agent, did not amount to service of the summons. The judge found that Hardin acted in good faith and not with intent to deceive. No copy was left.with him, and the certificate of the sheriff, which is the proof provided by statute, shows service, not on Hardin, but on Bridgers, the president. The cases cited by the plaintiff- — Johnson v. Johnson, 86 Ga., 450; Taylor v. Cook, 1 N. J. L., 54 — are not relevant to the-facts in the case at bar.' In the former the officer, by mistake, left a copy of the writ at the home of the defendant’s brother, and the defendant accepted such delivery as service; and in the latter the defendant directed the place of service.

A proper application of these principles provides substantial support for the argument that neither the officer’s conversation with Hardin nor the pretended service of the original summons on the president after the return day was effectual to confer jurisdiction. In each instance such service was a nullity. In the latter case, after the return day the writ lost its vitality, and service thereafter made could not confer upon the court jurisdiction over the defendants so served. 19 Ency. P. & P., 600; 21 R. C. L., 1273; 32 Cyc., 456; S. v. Kennedy, 18 N. J. L., 22; Hitchcock v. Haight, 7 Ill., 603; Draper v. Draper, 59 Ill., 119; Peck v. La Roche, 86 Ga., 314; Cummings v. Hoffman, 113 N. C., 268; Peebles v. Braswell, 107 N. C., 68; Mfg. Co. v. Simmons, 97 N. C., 89.

If service of the original writ was ineffectual, what was the legal import of the second summons? Did it mark the commencement of a new action or relate back and continue in effect the suit originally begun? That the original summons must be followed by process successively and properly issued' in order to preserve a continuous single action referable to the date of its issue, is-familiar learning. This successive process is an alias or pluries writ or summons. Fulbright v. Tritt, 19 N. C., 492; Penniman v. Daniel, 91 N. C., 434; S. c., 93 N. C., 332; Etheridge v. Woodley, 83 N. C., 11; Battle v. Baird, 118 N. C., 861. Such is the manifest significance of C. S., 481: “A failure to keep up the chain of summonses issued against a party, but not served, by means of an alias or pluries summons, is a discontinuance as to such party; and if a summons is served after a break in the chain, it is a new action as to such party, begun when the summons was issued.”

Ye must, therefore, determine (1) whether there was a break in the chain of process, and (2) whether the second summons continued the original suit.

Chitty says: “If tbe proceeding should be by writ of summons, then the plaintiff, or his attorney, must return 'non est inventus/ and enter the same of record in due time. . . . If it be necessary to continue the first writ of summons, then an alias or pluries may be issued into the same or another county; and it is very essential to take care that the first writ, whether of summons or capias, be in due time returned non est inventus, and that every continued process to save the statute of limitations must have a memorandum indorsed or subscribed, specifying the date of the first writ.” Chitty’s Practice, 408; 3 Bl., 280 et seq Tidd’s Practice, 111; Elliott’s Gen. Practice, 459; 20 Ency. P. & P., 1178; 32 Cyc., 445; 21 R. C. L., 1266.

This principle is approved in our decisions. In Fulbright v. Tritt, suprd, the facts are stated as follows: “The plaintiff, on 20 September, 1834, sued out a writ in case for slanderous words, commanding the sheriff to take the ‘body of Henry Tritt for Archibald Tritt,’ to answer, etc. At Fall Term, 1834, the sheriff returned the writ ‘executed on Henry Tritt — A. Tritt not to be found.’ No process issued from this term against Archibald Tritt. At Spring Term, 1835, the plaintiff entered a nol. pros, as to Henry Tritt, and issued what the clerk indorsed .as an alias writ, but which was in its terms an original writ, against Archibald Tritt, returnable to Fall Term, 1835; and the sheriff returned the same ‘not found.’ Then a writ, which the clerk called a pluries, but which was in terms an alias, was issued, returnable to Spring Term, 1836. This was executed; and the defendant appealed and pleaded the statute of limitations. The speaking of the words, as charged in the declaration, was within six months of the issuing of the original writ against ‘Henry Tritt for Archibald Tritt,’ but not within six months of the date of the first writ issued against Archibald Tritt, which was on 15 April, 1835.” Daniel, J., said: “If the original writ had been correctly issued against Archibald Tritt, returnable to Fall Term, 1834, as he was not arrested, the plaintiff should have issued an alias from that term. There was not an alias issued from that term, and the first suit was discontinued. The writ which issued on 15 April, 1835, against Archibald Tritt, must be considered the original in this action.” Fulbright’s case is approved in Etheridge v. Woodley, supra; Webster v. Laws, 86 N. C., 180; Hanna v. Ingram, 53 N. C., 55. In the case last cited reference is made to an intervening term, but in Fulbrighfs case it was held that the alias should have issued from the term to which the original summons was returnable.

In Webster v. Laws, supra, the facts were these: “The summons in the action was issued by a justice of the peace on 9 August, 1879, and the cause tried on 20th of the month. The defense set up was the pendency of another suit, instituted before another justice for the same cause of action and between tlie same parties, the warrant in which was returnable on the same day when the second suit was begun, but it does not appear to have been served. On the _ return day 'the justice who issued the first warrant was absent from the county and remained away several days. No further action was taken therein until some time afterwards, when an entry of nonsuit was made on the. docket of ■ the justice by himself. Upon these facts the Court declared, as matter of law, that the first action was depending and undetermined at the timé of the issuing and serving of the summons in the second action, and gave judgment against the plaintiffs, from which they appealed.”

Smith, C. J said: “We do not concur in the ruling that, upon the facts founds, the first action was pending when the second action was begun. The process not having been served, was exhausted on the day fixed for its return, and the action was in law then discontinued. This has been repeatedly decided in this Court. Fulbright v. Tritt, 19 N. C., 491; Governor v. Welch, 25 N. C., 249 ; Hanna v. Ingram, 53 N. C., 55; Etheridge v. Woodley, 83 N. C., 11.

“A discontinuance of process is different from a discontinuance of the action. 'When a plaintiff leaves a chasm in the proceedings of his cause,’ says Mr. Sellon, 'as by not continuing the process regularly from day to day and term to term, as he ought to do, the suit is discontinued and the defendant is no longer bound to attend.’ 2 Sellon’s Prac., 458; 3 Black. Com., 296.”

From these authorities we deduce the conclusion that the original action was discontinued, unless preserved by the summons issued on 10 April. There is no contention that it was a pluries writ. Was it an alias ? In the caption are the words, “alias original,” but there is nothing more to indicate that it was intended as alias process. In Simpson v. Simpson, 64 N. C., 428, it was held that the character of process purporting to be original is not changed by an indorsement of the word “alias.” As was said in Fulbright’s case, the alias should have issued from the return term. To the suggestion that the original had not then been returned there are two answers. In the first place, there is abundant authority that alias process follows the return of the original. Chitty’s Prac., supra; Tidd’s Prac., supra; Elliott’s Gen. Prac., supra; 20 Ency. P. & P., supra; 32 Cyc., supra; 21 R. C. L., supra. Here the original summons was in the hands of the sheriff when the second was issued, and they were served together. If the return of the original process was necessary the second evidently was not an alias; and, in the second place, if the return of the original was not necessary, the order for the alias should have been applied for at the return term; and in any event there should have been something in the body of the second summons to indicate its alleged relation to the original.

True, tbe original summons was returnable to a criminal term — but in accordance witb tbe statute: “At criminal terms of court, all civil process may be returned and pleadings filed wbicb may be returned and filed at civil terms", motions may be beard upon due notice, and trials in civil actions may be beard by consent of parties.” O. S., 1444. Watson v. Mitchell, 108 N. C., 364. “Motions upon due notice” are formal motions, as for alimony (Zimmerman v. Zimmerman, 113 N. C., 434), or to set aside a judgment (Allison v. Whittier, 101 N. C., 490), but not sucb as are merely incidental to tbe progress of a pending action. Coor v. Smith, 107 N. C., 431.

Nor did tbe defendant waive its right to insist that tbe'plaintiff bad not complied witb tbe statutory condition. It is true tbat tbe voluntary appearance of a defendant is equivalent to personal service of summons upon bim (O. S., 490) ; and if tbis statute and tbe decisions construing it were applicable to tbe record in tbis ease, tbe plaintiff’s argument would merit serious consideration. But they are not applicable for tbe reason tbat tbe defendant’s appearance was not voluntary. Appearance was made and an answer filed in response to proper service of tbe second summons; and if tbe defendant bad not answered, tbe plaintiff no doubt would bave recovered a judgment for tbe entire amount demanded in tbe complaint. Tbe defendant’s appearance was necessary to its resisting recovery in tbe action instituted by tbe plaintiff wben tbe second summons was issued. Tbe complaint alleges tbat tbe action was instituted witbin less than one year after tbe death of tbe plaintiff’s intestate, and tbe allegation is denied in tbe answer. Tbe defendants were not required to take action or move for judgment of nonsuit until tbe plaintiff’s evidence was concluded, because service of tbe second summons was. good. But then, at tbe first opportunity, tbe defendant insisted that, tbe pretended service of tbe first summons was void, tbat tbe second was. tbe beginning of tbe action in which tbe a-nswer -was filed, and tbat the-defendant was therefore entitled to a directed verdict.

His Honor did not find as a fact tbat tbe defendants were served witb summons on 13 January, but upon facts determined merely adjudged tbat tbe summons issued at tbat time was duly served. It is hardly necessary to remark tbat tbis is a judicial order or determination of bis Honor, involving a matter of law or legal inference, wbicb is subject to review on appeal. In like manner, tbe statement of Hardin tbat be was not a proper person upon whom process should be served was an inference of law wbicb did not absolve tbe officer from tbe duty of knowing, or ascertaining, whether or not sucb legal conclusion was correct.

Disregarding tbe question of a want of power to impart vitality to an exhausted process, we are unable to adopt tbe suggestion tbat bis Honor’s Ending of the facts was intended by way of amendment to validate a defective service.

Upon the facts disclosed by the record, we are constrained to hold that the action was not instituted within the statutory period, and that it cannot be maintained. The defendant was entitled to an instruction to this effect. For this reason the judgment is set aside and his Honor’s refusal to grant the defendant’s motion for a directed verdict is

Reversed.