#### W. H. JENETTE et al. v. HOVEY AND COMPANY et al.

(Filed 14 September, 1921.)

1. Attachment— Nonresident— Notice— Service — Publication—Summons —Statutes.

In proper instances; where civil actions are commenced and service is obtained by attachment of defendant’s property and publication of a notice based upon the jurisdiction thus acquired, the issuance of a summons at the commencement of the action is unnecessary. C. S., 802.

2. Same — Special Appearance — Motions—Court’s Discretion.

Where an affidavit, filed in an action wherein attachment is sought against the property of a nonresident within the jurisdiction of the court, is sufficient for the clerk to order service of the summons by publication, but service has not been ordered or made, and the cause has come up on defendant’s special appearance and motion to dismiss on that ground, and' pending the motion the plaintiff, upon an additional affidavit, without the Knowledge of the judge, has obtained an order of publication from the clerk, it is within the sound discretion of the judge to permit the publication of the summons to be proceeded with, and deny the defendant’s motion. C. S., 802, 806.

Appeal by defendant from Allen, J., at January Term, 1921, of PASQUOTANK.

Plaintiffs, citizens of this State, having a cause of action against Hovey & Company, a foreign-resident corporation, for an alleged breach *31■of contract, instituted this suit in tbe Superior Court of Pasquotank County and sought to obtain service upon tbe defendant by attaching tbe proceeds of a certain draft in tbe bands of tbe First and Citizens National Bank of Elizabeth City, N. 0., said funds presumably belonging to tbe defendant. Summons was issued 28 January, 1920, and duly served on tbe garnishee bank, but returned, on tbe day of its issuance, as to Hovey & Company, “not to be found in North Carolina.” On tbe same day plaintiffs secured from tbe clerk of tbe Superior Court a warrant of attachment, after filing proper affidavit and giving bond as required by statute, and tbe sheriff duly levied upon tbe above mentioned funds, said to be tbe property of tbe defendant. The warrant of attachment was served immediately, and made returnable 17 February, 1920.

Thereafter, on 30 December, 1920, tbe Mars Hill Trust Company, a Maine corporation, was allowed to intervene and set up its claim of title to tbe proceeds of said draft. Tbe funds were turned over to tbe intervener by order of court, upon tbe execution and filing of a ■good and sufficient bond “for tbe protection of all parties to this cause.”

Tbe plaintiffs’ complaint and answer of tbe intervener, Mars Hill Trust Company, were filed on 27 December, 1920. Tbe defendant, Hovey & Company, has not answered.

At tbe January Term, 1921, this cause being on tbe docket for trial, Hovey & Company, through its attorney, entered- a special appearance and moved to dismiss tbe action and to vacate tbe attachment, alleging that no valid service of tbe summons or warrant of attachment bad been made, by publication or otherwise, as required by law. While this motion was being beard before bis Honor in tbe Superior Court, plaintiffs filed with tbe clerk an affidavit and obtained from him an order of publication, to which reference is made in tbe judgment of tbe court, as follows:

“Pending tbe determination of tbe motion of Hovey & Company on its special appearance, said motion not being determined tbe day it was made, an affidavit for publication was filed by plaintiffs and an order ■of publication was signed by tbe clerk of tbe Superior Court — -said affidavit being also filed before tbe clerk — which affidavit and order appear in tbe record, to which reference is made, and publication was ■commenced as set forth in copy of notice appearing in tbe record.

“Tbe said affidavit and order of tbe clerk and publication were made without tbe knowledge or approval of any parties to tbe action, other than plaintiff, and without tbe knowledge of tbe judge before whom tbe motion to dismiss was pending.

“It appearing to tbe court that at tbe time of tbe institution of tbe .action an affidavit as set out in tbe record was filed in this cause, though *32no order of publication was actually signed, tbe court, in its discretion, orders and permits tbe plaintiff to proceed witb tbe publication pending tbe determination of tbis motion, in accordance witb tbe order of tbe clerk made herein.

“It is further ordered that tbe motion of tbe defendant, Hovey & Company, upon its special appearance, to dismiss tbe action and vacate tbe attachment be and tbe same is hereby overruled.”

Tbe defendant, Hovey & Company, noted an exception and appealed.

Ehringhaus & Small for plaintiffs.

W. A. Worth for defendant.

Stacy, J.,

after stating tbe case: Tbis action was brought to recover damages for an alleged breach of contract growing out of an agreement on tbe part of tbe defendant, Hovey & Company, to deliver a certain quantity of seed Irish potatoes to tbe plaintiffs at Elizabeth City, N. C., during tbe month of January, 1920. Tbe defendant, being a nonresident corporation and having no XDrocess agent in tbis State, could not be served personally witb summons; hence, service was sought to be obtained by issuing a warrant of attachment and levying upon tbe proceeds of a draft in tbe bands of tbe First and Citizens National Bank of Elizabeth City, N. 0., it being alleged that said funds belonged to Hovey & Company. Tbe defendant, through its counsel, entered a special appearance, and, upon tbe facts as above stated, moved to dismiss tbe attachment for want of any service of process, alleging that none bad been made, either personally or by publication.

From an adverse ruling on tbis motion, tbe defendant, Hovey & Company, excepted and immediately appealed, which it bad a right to do under a number of decisions of tbis Court. Finch v. Slater, 152 N. C., 155, and Warlick v. Reynolds, 151 N. C., 606. Tbe motion to dismiss tbe attachment affects a substantial right, and from tbe court’s refusal to grant tbe same, a present appeal will lie. Sheldon v. Kivett, 110 N. C., 408; Roulhac v. Brown, 87 N. C., 1; Judd v. Mining Co., 120 N. C., 397.

Tbe appellant rests its case upon tbe ground that plaintiffs have failed to meet tbe requirements of tbe statute witb respect to service of process as asked for and issued in tbis case.

In tbe first place, it should be noted that, in proper instances, where civil actions are commenced and service is obtained by attachment of defendant’s property and publication of a notice based upon tbe jurisdiction thus acquired, tbe issuance of a summons is unnecessary. Mills v. Hansel, 168 N. C., 651; Armstrong v. Kinsell, 164 N. C., 125; Currie *33 v. Mining Co., 157 N. C., 217; Grocery Co. v. Bag Co., 142 N. C., 174, and Best v. Mortgage Co., 128 N. C., 351.

But it is urged that the law in this respect was declared to be otherwise in Ditmore v. Goins, 128 N. C., 325, and McClure v. Fellows, 131 N. C., 509, and so it was. It may be observed, however, that these cases were in direct conflict with the decision of the Court in Best v. Mortgage Co., 128 N. C., 351; and, besides, McGlure’s case was expressly overruled in Grocery Co. v. Bag Co., 142 N. C., 174, which of necessity overruled Ditmore’s case, though not specifically mentioned therein. Therefore, both of these cases must now be considered or understood as having been overruled, and no longer are precedents. They have never been approved in any subsequent opinion; but, on the contrary, a different ruling has been announced and consistently followed.

We then come to consider whether plaintiffs have brought themselves within the statute providing for service by attachment and publication.

The affidavit filed at the institution of the action would have justified the clerk in signing an order of publication (Luttrell v. Martin, 112 N. C., 593, and Branch v. Frank, 81 N. C., 180), and his failure to do so at the time doubtless was due to an oversight or inadvertence on the part of plaintiffs. Nevertheless, the necessary order was not made until an additional affidavit was filed, nearly a year later, and after the defendant had entered a special appearance and moved to dismiss for want of publication, etc. The defendant contends that under C. S., 802, and the decision of this Court in Bowman v. Ward, 152 N. C., 602, the-, warrant of attachment in the instant Case should have been vacated.. While it is true the delay in obtaining the order of publication might well be characterized as unusual, and his Honor probably would have been justified in so holding, yet we think it was within his discretion to permit the publication to continue. The rights of all parties have been preserved, and none destroyed, by this ruling. A similar question was presented in the case of Mills v. Hansel, supra, where the present Chief Justice, speaking for a unanimous Court, said: “The court acquired jurisdiction of the action by the service of the attachment upon the property of the defendant. If the notice was not duly served by the publication, it was 'error to discharge an attachment granted as ancillary to an action because of the insufficiency of the affidavit to obtain service of the summons by publication, for it is possible that the defect may be cured by amendments.’ Branch v. Frank, 81 N. C., 180. The remedy is not to dismiss the attachment, but by ordering a republication, for as. the defendant is a nonresident, to dismiss the attachment may deprive the plaintiff of all remedy by the removal of the property before a new-proceeding and attachment can be had,” citing Price v. Cox, 83 N. C., 261; Penniman v. Daniel, 90 N. C., 159; S. c., 93 N. C., 332.

*34C. S., 806, wticb bears more directly upon tbe question at issue, requires publication of tbe issuance of tbe attachment, unless tbe defendant can personally be served with process, and it bas been beld witb us tbat a failure to make sucb service, either personally or by publication, entitles tbe defendant to have tbe attachment dismissed. But it bas also been decided tbat tbe Court, in its discretion, may extend tbe time for ordering publication and service of sucb process. Finch v. Slater, supra; Mills v. Hansel, supra, and Price v. Cox, 83 N. C., 261.

Hence, upon authority, we think tbe ruling of bis Honor, made in tbe exercise-of bis discretion, must be upheld. It is so ordered.

Affirmed.