#### W. J. PETTIGREW v. R. S. McCOIN.

(Filed 6 May, 1914.)

Actions Pending — Issuance of Summons — Statement.

Under tiie express provision of our statute a civil action commences upon the issuance of a summons from a court of competent jurisdiction (Revisal, sec. 369), and as the statute fixes the time of the inception of the action, it is pending from that time. Hence an action between the same parties upon the same subject-matter, returnable to a different jurisdiction, will abate, and upon motion will be dismissed, when it appears that the summons was subsequently issued, though served in priority of time.

Clakk, C. J., dissenting.

Appeal by defendant from Devin, J., at, September Term, 1913, of DiÍRI-iam.

This is an appeal from tbe refusal of a motion to dismiss tbe present action, upon tbe ground of the pendency of another action in Yance County, beard upon tbe following facts:

“Tbe defendant in this action caused a summons to be issued against tbe plaintiff here from tbe Superior Court of Yance County, on 5 March, 1913, entitled R. S. McCoin v. W. J. Petti-grew and tbe American Bonding Company of Baltimore, Maryland, which was immediately sent by mail to tbe sheriff of Dur-*473bam County for service. It was in tbe office in Durham on tbe morning of 6 March, but tbe sheriff was out of town and only received it on tbe morning of tbe 7th; but was unable to find tbe defendant, who was out of town, until the night of 8 March, when tbe summons was duly served, about tbe hour of 9 p. m.

. “Tbe summons in this action was issued on 7 March, 1913, from tbe Durham Superior Court, and sent by special messenger to Henderson, Yance County, on 8 March, 1913, when it was delivered to tbe sheriff of Yance County and served upon tbe defendant in this action early in tbe afternoon of that day, between tbe hours of 1 and 2 p. m., before tbe service of tbe Y anee County summons upon tbe defendant in that case in Durham.

“Both actions are upon tbe same cause in courts of this State, and between tbe same parties, with tbe addition in tbe Yance action of tbe surety upon tbe bond of tbe said Pettigrew for tbe performance of tbe contract set out in tbe complaint. Both actions are still pending and undecided.

“Upon tbe foregoing facts bis Honor was of tbe opinion, and held, that tbe Superior Court of Durham was entitled to entertain and proceed with tbe action begun on 7 March, and denied defendant’s motion to abate and dismiss this action,” and . . . “tbe defendants excepted and appealed.”

L. L. Lilley and Manning, Everett & Kitchin for plaintiff.

T. T. Hieles and T. M. Pittman for defendant.

AlleN, J.

Tbe question presented by this appeal is whether an action is pending from tbe issuing of tbe summons or from its service.

There is a diversity, but not necessarily a conflict, of opinion on tbe point, due to tbe fact that it is held in some States that tbe action is commenced when tbe complaint is filed, in others when tbe process is issued, and in others when tbe process is served (1 A. and E. PI. and Pr., 119), and this apparent conflict in tbe decisions as to tbe time of tbe commencement of tbe action seems to have originated in tbe difference in tbe rule at law and in equity, before tbe Code practice was adopted.

*474“At common law the suit was considered as pending from the issuance of the writ; in equity the writ was issued after bill filed., and the suit regarded as -commenced from the time of the service of the writ.” Handlon v. Handlon, 37 W. Va., 491.

The authorities seem, however, to agree that the action is pending from the time of its commencement (1 A. and E. Enc. PL and Pr.), and our statute (Rev., sec. 359) declares in express terms that “An action is commenced as to each defendant when the summons is issued against him.” Pending is defined in Black’s Law Dictionary as “begun, but not yet completed; unsettled; undetermined. Thus an action or suit is said to be pending from its inception until the rendition of final judgment” ;- and as our statute fixes the inception of the action at the time of lawfully issuing the summons, we are of opinion it is thereafter pending.

The action has been commenced and is undetermined, and if not pending, the inquiry may well be made, Where is it, and what has become of it %

It is because of the pendency of the action that the courts-issue restraining orders, appoint receivers, issue warrants of attachment, and do other things before the service of summons.

We have found only two authorities in our State bearing directly on the case under consideration: Simmons v. Simmons, 62 N. C., 65, decided before the adoption of the Code of Civil Procedure, of which Rev., sec. 359, is a part, in which it is said: “It seems, therefore, to be settled that a suit is not pending until the return, or at least until service of process,” and Webster v. Laws, 86 N. C., 179, decided after the adoption of the Code.

In the last case the summons was issued by a justice on 9 August, 1879, and the cause tried on 20 August, 1879. The defense relied on was the pendency of another action, in which the summons had been issued before 9 August and was returnable on that day, but which had not been served. The judge in the Superior Court held that the first action was pending, and this ruling was reversed on appeal,.the Court saying: “We do not concur in the ruling that, upon the facts found, the first action *475was pending when tbe 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.”

If the action was discontinued on the return day, and not until that time, it would seem to follow that it was pending from the time of issuing the summons until the return day, although the summons had not been served.

We are therefore of opinion that the action in Yance County was pending at the time of the institution of the action in Durham, and so hold.

Eeversed.

Clare:, O. J.,

dissenting: Under Eev., 429, a civil action is ■ “commenced” by issuing the summons. But it is “pending” only from service of the summons or acceptance thereof. Eev., 445, provides: “From the time of service of the summons in a civil action or the allowance of a provisional remedy, the court is deemed to have acquired, and to have control of all subsequent proceedings.” It would seem clear that until the court has thus acquired jurisdiction, the cause is not “pending” in said court. It is merely “commenced” by the issuing of the summons. ■

This is clearly held in Simmons v. Simmons, 62 N. C., 65, in which it is said: “It seems, therefore, to be settled that a suit is not pending until the return, or' at least until service of process.” That case is fully discussed by Beade, J., with citation of authorities. That ruling was cited and approved, Lynch v. Lynch, 62 N. C., 46, and has never been overruled. While that case was decided prior to the adoption of the Code of Civil Procedure, it was a construction of the meaning of the words “suit pending,” and the use of the words thereafter in the Code of Civil Procedure is presumed to have been with the knowledge and an adoption of the construction placed by the courts upon that phrase. This construction has not been changed by any statute, nor has it been ruled otherwise.

Webster v. Laws, 86 N. C., 119, merely holds that when a magistrate’s warrant was “not served, it was exhausted on 9 August, the day fixed for its return, and the action was in law then' discontinued.” In that case the warrant in the second *476action was issued on 9 August, and as the other action'bad been discontinued, there was no other action “pending” on 20. August, when judgment was' rendered in the latter case.

It would seem that this is the recognized ruling in this' State, and it is amply sustained by authorities elsewhere, some of which are: 1 Cyc., 23, which says: “It is held that an action is not pending,'to be available in abatement, until after service of the writ or of other process therein,” citing Kirby v. Jackson, 42 Vt., 552; Morton v. Webb, 7 Vt., 123; Downer v. Garland, 21 Vt., 362; Primm v. Gray, 10 Cal., 522; Weaver v. Conger, 10 Cal., 233; Burton Co. v. Cowan, 80 Hun. (New York), 392; s. c., 30 N. Y. Supp., 317; Warner v. Warner, 6 Misc. (N. Y.), 249; s. c., 27 N. Y. Supp., 160. 1 Cyc., 24, also cites Webster v. Laws, 86 N. C., 178, that “where process is not served on the day fixed for its return, the action is discontinued. Consequently such action cannot be pleaded in abatement of an action commenced on the return day of the first process.”

In Byne v. Byne, 1 Rich. (S. O.), 438, it is held that illegal service of process does not constitute the pendency of an action which will bar the bringing of another suit. Indeed, it has been held in 1 Cyc., 24, in some cases that the summons must not only be served, but returned and entered, before it can be pleaded, citing Perkins v. Perkins, 7 Conn., 558; Com. v. Churchill, 5 Mass., 174; Bullock v. Bolles, 9 R. I., 501; Reynolds v. McClure, 13 Ala., 159; Dean v. Massey, 7 Ala., 601. Also 1 Enc. L. and P., 1084, citing Burlingham v. Cooper, 36 Neb., 73; Trust Co. v. Atherton, 67 Neb., 305; Pollock v. Pollock, 2 Ohio Cir. Ct., 140; Clark v. Helms, 1 Root (Conn.), 486; and numerous other cases in that State. Later cases are Monroe v. Millizen, 113 Ill. App., 157; Guinn v. Elliott, 123 Iowa, 79; McMaham v. Hubbard, 217 Mo., 624; Hart v. Hart, 83 N. Y. Supp., 897.

As to ancillary remedies under our Code, it is not required that any of them be issued after the action is pending. It is required that such orders in Arrest and Bail “may be made to accompany the summons or to issue at any time afterwards before judgment.” (Rev., 731.) In Attachment, “to accompany the *477summons or at any time after tbe commencement of tbe action” (Rev., 131); in Claim and Delivery, “at tbe time of issuing tbe summons or at any time before answer” (Rev., 790) ; as to Injunctions, “at tbe time of commencing' tbe action or at any time afterwards, before judgment” (Rev., 810). As to receivers, tbe same rule applies “as is provided for injunctions” (Rev., 846).

Upon tbe reason of tbe thing, as well as upon authority, an action should not be forbidden to be brought simply because tbe other party has issued a summons, but this should be only after jurisdiction of tbe action is “acquired by service of a summons” (Rev., 445), for until then tbe defendant is not in court, and tbe case is not “pending.” See Worth v. Bank, 121 N. C., 348, 349.

Any other construction would lead to much abuse, for a party who might wish to delay a proceeding could issue tbe summons to Ms own county and by successiye aliases keep tbe cause in existence so that tbe other party, especially if living in another county, would be held up and barred from bringing an action there. When, however, tbe other party has been served and brought into court be can set up bis counterclaim. This be cannot do if tbe mere issuing and reissuing,, of tbe summons, without service, is a pending action. This course would at least enable a party who wishes to put off litigation to do so always by tbe mere issuing of a summons at a cost of a few cents, and thus preempt tbe venue for bis own county, when tbe defendant lives in another, and be can continue to do so.

Upon tbe facts in this case, tbe judgment of tbe court below should be

Affirmed.