{ "id": 8650320, "name": "THE STATE AND COUNTY OF GUILFORD v. THE GEORGIA COMPANY", "name_abbreviation": "State v. Georgia Co.", "decision_date": "1891-09", "docket_number": "", "first_page": "310", "last_page": "314", "citations": [ { "type": "official", "cite": "109 N.C. 310" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "82 N. C., 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682176 ], "opinion_index": 0, "case_paths": [ "/nc/82/0025-01" ] }, { "cite": "98 N. C., 778", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276352 ], "opinion_index": 0, "case_paths": [ "/nc/98/0778-01" ] }, { "cite": "97 N. C., 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651059 ], "opinion_index": 0, "case_paths": [ "/nc/97/0514-01" ] }, { "cite": "95 N. C., 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275238 ], "opinion_index": 0, "case_paths": [ "/nc/95/0633-01" ] }, { "cite": "85 N. C., 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278899 ], "opinion_index": 0, "case_paths": [ "/nc/85/0569-01" ] }, { "cite": "78 N. C., 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694652 ], "opinion_index": 0, "case_paths": [ "/nc/78/0412-01" ] }, { "cite": "82 N. C., 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683230 ], "opinion_index": 0, "case_paths": [ "/nc/82/0468-01" ] }, { "cite": "94 N. C., 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651422 ], "opinion_index": 0, "case_paths": [ "/nc/94/0511-01" ] }, { "cite": "88 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682343 ], "opinion_index": 0, "case_paths": [ "/nc/88/0001-01" ] }, { "cite": "84 N. C., 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687002 ], "opinion_index": 0, "case_paths": [ "/nc/84/0122-01" ] }, { "cite": "108 N. C., 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651424 ], "opinion_index": 0, "case_paths": [ "/nc/108/0614-01" ] }, { "cite": "71 N. C., 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278076 ], "opinion_index": 0, "case_paths": [ "/nc/71/0331-01" ] }, { "cite": "67 N. C., 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2092656 ], "opinion_index": 0, "case_paths": [ "/nc/67/0257-01" ] } ], "analysis": { "cardinality": 420, "char_count": 6982, "ocr_confidence": 0.546, "pagerank": { "raw": 8.185492834761687e-07, "percentile": 0.9746278644044498 }, "sha256": "6f67942073c5aef96f3cc5a9b3413366cf00f1ddeb3378bf881bb8148a87a399", "simhash": "1:1ff2554c100bc753", "word_count": 1246 }, "last_updated": "2023-07-14T20:47:39.876308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE STATE AND COUNTY OF GUILFORD v. THE GEORGIA COMPANY." ], "opinions": [ { "text": "Clark, J.:\nThis application is for a certiorari, as a substitute for an appeal claimed to have been denied by the Judge. Skinner v. Maxwell, 67 N. C., 257. It is clear that an appeal did not lie from the interlocutory ruling of the Court, and it was the duty of the Judge not to suspend proceedings. Carleton v. Byers, 71 N. C., 331. If the defendant was not duly served with process properly returnable to such term, he could either have disregarded the further proceedings of the Court, which would have been a nullity as to him, or he could have had his exception noted and have proceeded with the trial; the latter being the preferable and more commendable course. Plemmons v. Improvement Go./ 108 N. C., 614. The manifest delays and inconveniences from entertaining premature and fragmentary appeals have, indeed, been often pointed out. Hines v. Hines, 84 N. C., 122; Commissioners v. Satchwell, 88 N. C., 1; White v. Utley, 94 N. C., 511, and in many other cases. As no appeal lay, a certiorari as a substitute therefor cannot be granted. Badger v. Daniel, 82 N. C., 468.\nNotwithstanding the petition must be denied, it may serve the end in view, to pass upon the points presented, as has been sometimes, though rarely, done by the Court, upon sufficient cause to justify it. McBryde v. Patterson, 78 N. C., 412; State v. Tyler, 85 N. C., 569; State v. Lockyear, 95 N. C., 633; State v. Nash, 97 N. C., 514; State v. Divine, 98 N. C., 778.\nThe publication required by chapter 108, Acts. 1889, is \u201c once a week for four weeks.\u201d This, it appears from the petitioner\u2019s application, was made, for it avers the daily publication in a newspaper from August 3 to August 31, 1891, and a publication on the four Mondays, August 3, 10, 17 and 24, was a publication \u201c once a week for four weeks\u201d prior to the term of Court beginning Monday, August 31. But if the requirement is construed to mean publication \u201cfor four weeks,\u201d still there was a compliance under our statute (The Code, \u00a7\u00a7 596 and 602), for, \u201cexcluding the first day (August 3) and including the last day,\u201d August 31, there was publication made for twenty-eight days, or \u201cfour weeks.\u201d The same construction has always been given to the statute (The Code, \u00a7 200) requiring personal service \u201c ten days before the beginning of the term,\u201d for- service before midnight of Friday, the tenth day before Court, has always been held sufficient. Taylor v. Harris, 82 N. C., 25. We do not think that the defendant, w\u2019hen served by publication, is entitled to ten days in addition to the four weeks. The publication \u201c once a week for four weeks \u201d is a substitute for and stands in lieu of the \u201cten days\u201d which is allowed to a party on whom summons is personally served This is not only consonant to the reason of the thing, but is in accordance with the express words of the statute, The Code, \u00a7 227: \u201cIn the cases in which service by publication is allowed, the summons shall be deemed served at the expiration of the time prescribed by the order of publication, and the party shall then be in Court; \u201d that is exactly as a paity who has had ten days\u2019 personal notice of the summons would be in Court. We are cited to the New York decisions, but the statute in that State (Code N. Y., 441) differs essentially from ours in the omission of the words \u201cand the party shall then be in Court.\u201d\nNor is there any force in the further objection, that \u201c a copy of the summons and the proper title of the action was not made in the publication.\u201d The publication as set out in the petition is a substantial publication of the summons and a full compliance with the statute.. It contains everything that is in the summons, and the additional matter in the publication, at the most, was mere surplusage. We cannot conceive how the defendant could have been prejudiced thereby.\nMotion denied.", "type": "majority", "author": "Clark, J.:" } ], "attorneys": [ "Messrs. L. M. Scott and R. M. Douglas, for plaintiffs.", "Messrs. P. B. Means and F. IT. Busbee, for defendant." ], "corrections": "", "head_matter": "THE STATE AND COUNTY OF GUILFORD v. THE GEORGIA COMPANY.\n. Appeal, when Premature \u2014 Process \u2014 Service \u2014 Publication \u2014 Statute.\n1. An appeal from the refusal of a motion to dismiss an action for want of proper service of process, taken before final judgment, is premature and will not be considered. The better practice is to note an exception and proceed with the trial.\n2. Service of summons made by publication from August 3rd to August \u25a031st, the term of the Court to which the process was returnable beginning on the latter day, is a sufficient publication of \u201c once a week for four weeks,\u201d and a compliance with the statutes in that respect. The Code, \u00a7\u00a7 200, 596, 602; ch. 108, Laws 1889.\n3. It is sufficient if the publication contains the substantial elements of the summons, and the fact that it is not a literal copy will not render the service void.\nThis cause was heard, upon motion, before Winston, J., at Fall Term, 1891, of Guileoed Superior Court.\nThe petition alleges that notice of summons was published in The Daily Record from August 3rd, 1891, to August 31st, 1891, both days inclusive, the last day being the day on which Court began.\nThat on Saturday, September 5th, the case was called by his Honor in its order on the summons docket, when the attorney for defendant entered a special appearance, and moved\u2014\n1. That this case go over to next term as return term of summons, because the notice of publication embraces only four weeks, and not four weeks and ten days.\n2. The case is not properly constituted in this Court, in that a copy of the summons and the proper title of action was not made in the publication.\nBoth motions were overruled, and defendant prayed an appeal, which was refused.\nThe following is a copy of the publication made:\nNOTICE.\nGuileoed CouNty \u2014 Superior -Court.\nState oe Noeth Caeoliha AND the Board\"] oe Commissionees oe Guileoed County .! Service by v. i Publication. The Georgia Company. ' J\nThis is a civil action, brought in this Court in behalf of the creditors of the defendant corporation to obtain the appointment of a receiver, and to follow and collect the assets of the defendant corporation for the payment of State and county taxes; and it appearing to my satisfaction that the defendant is a corporation duly organized under the laws of this State; that a summons has been duly issued against the defendant, and that no officer or agent thereof, upon whom the service of the same can be lawfully made, can, after due diligence, be found within the State, the defendant, the said The Georgia Company, is hereby notified to appear at the next term of this Court to be held on the 31st day of August, 1891, and demur or answer to the complaint which will be filed in said cause within the first three days of said term, or judgment by default will be entered against it.\nIt is ordered that this notice be published once a week for four successive weeks in The Daily Record, a newspaper published in the said county of Guilford.\nThis 3rd day of August, 1891.\nJno. J. NelsoN, C. 8. G.\nMessrs. L. M. Scott and R. M. Douglas, for plaintiffs.\nMessrs. P. B. Means and F. IT. Busbee, for defendant." }, "file_name": "0310-01", "first_page_order": 344, "last_page_order": 348 }