Mullen v. Norfolk & Carolina Canal Co.

The defendant then entered an appearance to the merits, and, (9) after trial of the issues before Graves, J., there was an appeal by both parties from various rulings, which it is not necessary to set out, inasmuch as the decision of this Court rests solely on the appeal from the refusal of the motion to dismiss the action. It was strenuously argued that the defendant could not be brought into court by attachment and publication because Laws 1891, ch. 120, had provided, as a substitute therefor, service by mailing the summons "to the sheriff or other process officer of the county and State where the defendant resides." This, it was contended, was at the time this action was begun the exclusive mode of service upon nonresidents, unless it had appeared that service could not be had in that mode. We think that mailing process to the sheriff of the county and State where the nonresident resides, to be served upon him, was optional and not exclusive of service by attachment and publication in cases in which these last can be had. This is shown by the wording of the act of 1891 that "it will be sufficient to mail a copy of the summons," etc., in lieu of publication, and by the provision that this shall be "added after" (not substituted for) paragraph (5) of section 218 of The Code. Laws 1893, ch. 79, is not corrective of any error or omission in the act of 1891, but is a legislative construction declaratory of the meaning of the act of 1891, a construction which it would have borne though the act of 1893 had not, out of abundant caution, been passed.

But the attachment is invalid because the action is for unliquidated damages for injury to realty and the attachment was levied prior to chapter 77, Laws 1893. Price v. Cox, 83 N.C. 261; Wilson v. Mfg. Co.,88 N.C. 5.

It follows that the attempted service by publication, based on such void attachment, is itself invalid. This point has been (10) so clearly discussed by Shepherd, J., in Winfree v. Bagley, 102 N.C. 515, that it would be a work of supererogation to repeat it. The affidavit to procure an attachment must be specific (Bacon v. Johnson, 110 N.C. 114), and must set forth one of the grounds recited in section 347 of The Code. It should be noted that this section differs materially from the statute in force when Wilson v. Mfg. Co., supra, was decided. It may be, and is very probable that the defendant is a domestic as well as a foreign corporation. But in the affidavit, orders and statement of the case it is stated to be a foreign corporation. Hence, the question whether, if it is a domestic corporation and its officers are not to be found in this State, it can be brought into court in the manner provided by chapters 108 and 263, Acts of 1889 (Clark's Code, 2 Ed., p. 133), is a question not now before us. Treated as a foreign corporation, the action being for unliquidated damages for injury to realty prior to the Laws 1893, the optional mode of service by attachment and publication is invalid, as would have been in such case mailing process and its service by the sheriff of the place of residence.Long v. Ins. Co., post, 45.

The defendant appeared specially below, and moved to dismiss the action. This being denied, the judge properly held that an appeal did not lie, and that the defendant should have his exception noted, and proceed. This has already been held in this same case, 112 N.C. 109. The subsequent appearance of the defendant to the merits, after exception entered to the refusal of the motion to dismiss, waives none of its rights. On appeal the exception comes up for review. Luttrell v. Martin, 112 N.C. 593. As the action must be dismissed this disposes of both appeals.

Action dismissed.

Cited: Long v. Ins. Co., post, 469; Mullen v. Canal Co., 115 N.C. 16;Lemly v. Ellis, 143 N.C. 208, 212.

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