{ "id": 8626057, "name": "W. D. BETHELL v. B. F. LEE", "name_abbreviation": "Bethell v. Lee", "decision_date": "1931-05-13", "docket_number": "", "first_page": "755", "last_page": "759", "citations": [ { "type": "official", "cite": "200 N.C. 755" } ], "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": "112 N. C., 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651532 ], "opinion_index": 0, "case_paths": [ "/nc/112/0593-01" ] }, { "cite": "76 N. C., 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697759 ], "opinion_index": 0, "case_paths": [ "/nc/76/0428-01" ] }, { "cite": "143 N. C., 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656690 ], "opinion_index": 0, "case_paths": [ "/nc/143/0200-01" ] }, { "cite": "193 N. C., 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217858 ], "opinion_index": 0, "case_paths": [ "/nc/193/0568-01" ] }, { "cite": "182 N. C., 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655105 ], "opinion_index": 0, "case_paths": [ "/nc/182/0030-01" ] }, { "cite": "168 N. C., 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662187 ], "opinion_index": 0, "case_paths": [ "/nc/168/0651-01" ] }, { "cite": "142 N. C., 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651822 ], "opinion_index": 0, "case_paths": [ "/nc/142/0174-01" ] }, { "cite": "179 N. C., 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655388 ], "opinion_index": 0, "case_paths": [ "/nc/179/0182-01" ] }, { "cite": "159 N. C., 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656354 ], "opinion_index": 0, "case_paths": [ "/nc/159/0038-01" ] }, { "cite": "128 N. C., 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660396 ], "opinion_index": 0, "case_paths": [ "/nc/128/0351-01" ] } ], "analysis": { "cardinality": 487, "char_count": 11018, "ocr_confidence": 0.468, "pagerank": { "raw": 1.4685401976683962e-07, "percentile": 0.6587246978491796 }, "sha256": "da8b28b9d44f7ce76b819c842fb68539ee373195fa0224723a118f2616b9755e", "simhash": "1:026de121880bb6c8", "word_count": 1927 }, "last_updated": "2023-07-14T16:40:42.579520+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. D. BETHELL v. B. F. LEE." ], "opinions": [ { "text": "BbogdeN, J.-\nThe vital question of law presented by the record is whether the attachment proceedings in the case of F. B. Lee v. Geo. W. Bethell were valid.\nAttachment is a statutory remedy in derogation of common law, and hence must be strictly construed. Notwithstanding, substantial compliance with the requirements of the statute is sufficient. Best v. British & American Co., 128 N. C., 351; Page v. McDonald, 159 N. C., 38.\nIt is to be noted that the summons in the attachment suit was returned by the sheriff \u201cnot to be found in Rockingham County.\u201d Nothing else appearing, this return would be insufficient to support a service of summons by publication because C. S., 484, requires that it must appear to the satisfaction of the court by affidavit that' the person to be served \u201ccannot after due diligence be found in the State.\u201d Sawyer v. Drainage District, 179 N. C., 182. But was a summons necessary in the first instance? The record discloses that at the time of instituting the suit on 4 June, 1921, the plaintiff Lee filed a verified complaint and two affidavits. The verified complaint alleges that the defendant, Geo. \"W. Bethell, was a resident of the State of Virginia, residing in the city of Norfolk. In one affidavit it was stated that said defendant was a \u201cnonresident of the State of North Carolina and is beyond the reach of process issuing from the courts of said State.\u201d In another affidavit filed at the same time, it was stated \u201cthat the said Geo. W. Bethell is a nonresident of the State of North Carolina and has been for several years.\u201d\nThe principle of law applicable to such facts is clearly stated by McIntosh in North Carolina Practice and Procedure, section 800, page 926, as follows: \u201cBut where it clearly appears to the court, by affidavit, that the defendant is nonresident and cannot be personally served, the affidavit and order for publication will take the place of the summons, and this to be followed by seizure of property, and publication gives the court jurisdiction, without going through the useless formality of issuing a summons and having the sheriff make the return that the defendant is not to be found.\u201d The text is wholly supported by the authorities cited, to wit: Grocery Co. v. Bag Co., 142 N. C., 174; Mills v. Hansel, 168 N. C., 651; Jenette v. Hovey & Co., 182 N. C., 30. See, also, Mofon v. Cressey, 193 N. C., 568; Lemly v. Ellis, 143 N. C., 200; Hess, Rogers & Co. v. Brower, 76 N. C., 428; Luttrell v. Martin, 112 N. C., 593.\nTbe affidavit in tbe case at bar states tbat tbe cause of action is for breach of contract for money bad and received; tbat tbe defendant bad been a nonresident of the State for several years and is a resident of tbe State of Virginia and not subject to tbe process of tbe courts of North Carolina. Tbe notice of summons and warrant of attachment states tbat tbe cause of action is to recover a specific sum for money bad and received, and also sets out tbe time and place of tbe return of summons and warrant of attachment.\nIJpon tbe whole record tbe court is of tbe opinion tbat a substantial compliance with tbe statutes is disclosed and tbe judgment is\nReversed.", "type": "majority", "author": "BbogdeN, J.-" } ], "attorneys": [ "Wm. Reid Dalton for plaintiff.", "Giidewell, Dwm & Gwyn for defendant." ], "corrections": "", "head_matter": "W. D. BETHELL v. B. F. LEE.\n(Filed 13 May, 1931.)\nProcess B c \u2014 Statutory requirements o\u00ed affidavit for service by publication held substantially complied with in this case.\nOur statute allowing service of summons by publication, O. S., 484, providing among other things that it be made to appear to the satisfaction of the court by affidavit that the person to be served \u201ccannot after due diligence be found in the State\u201d is in derogation of the common law, and its requirements must be substantially complied with, and held: where the summons has been duly returned \u201cdefendant not to be found in the State,\u201d and at the time of its issuance it was alleged in a verified complaint and in supporting affidavits that the cause of action was for money had and received, and that the defendant was beyond the limits of the State, and was a resident of another State, the statute was substantially complied with and the validity of the service is upheld.\nCivil actioN, before Finley, J., at November Term, 1930, of Rocic-IN6HAK.\nTbe evidence tended to sbow tbat on 4 June, 1921, B. E. Lee instituted a civil action against George W. Betbell. On 6 June, 1921, tbe sheriff: returned tbe summons witb tbe following entry: \u201cNot to be found in Rockingham County.\u201d On tbe same day tbe plaintiff filed a complaint alleging \u201ctbat tbe defendant is a resident of tbe State of Virginia, residing in tbe city of Norfolk.\u201d And further, \u201ctbat tbe defendant, George W. Bethell, is indebted to the plaintiff in the sum of $4,218.50, and interest thereon from 1 July, 1920; that no part of said debt has been paid to satisfy the entire amount, but the entire amount is still due and owing to the plaintiff by the defendant; that there are no offsets or counterclaims in favor of defendant and against the plaintiff on account of said debt.\u201d On the same day the plaintiff Lee made an affidavit as follows: \u201cThat he is about to commence an action against the above-named defendant for the purpose of recovering $4,218.50, with interest from 1 July, 1920; that the said defendant is a nonresident of the State of North Carolina and is beyond, the reach of process issuing from the courts of said State.\u201d On the same day the plaintiff Lee filed another affidavit as follows: \u201cThat George W. Bethell, the defendant, is justly indebted to B. E. Lee, the plaintiff, in the sum of $4,218.50, with interest from 1 July, 1920, as nearly as he can ascertain same over and above all discounts, setoffs and counterclaims which the said defendant has against him, which said debt arose from breach of contract on the part of the defendant, whereby the said defendant failed and refused to pay the plaintiff and his assignor the said sum of $4,218.50, with interest from 1 July, 1920, which said sum of money was due this plaintiff and his assignor for money paid by the plaintiff and his assignor to the use of defendant; that the said George W. Bethell is a nonresident of the State of North Carolina and has been for several years; that the said George W. Bethell is the owner of certain real estate situated in the State of North Carolina, the value of which being sufficient to satisfy the claim of this plaintiff. 'Wherefore, this plaintiff prays the court for a warrant of attachment authorizing the seizure under said attachment of any and all property owned by the said George W. Bethell to the end that the claims of this plaintiff may be satisfied.\u201d\nThereupon, on 6 June, 1921, the clerk of the Superior Court made the following order: \u201cIt appearing to the court from the affidavit of the plaintiff filed in the above-entitled cause that the defendant, George W. Bethell, is a nonresident of the State of North Carolina, and is beyond the reach of process issuing from the courts of this State, and it further appearing from said affidavit that the said B. F. Lee has a good cause of action against the said Geo. W. Bethell:\nIt is, therefore, ordered that notice of this action be published once a week for four weeks in Madison Messenger, a newspaper published in Eockingham County, setting forth the title of the action and stating the names of the parties and amount of the claim, the issuing of the attachment and a brief recital of the subject-matter and nature of the Suit, and requiring the defendant to appear before the clerk of the Superior Court of Eockingham County, at his office in Wentworth, on 12 July, 1921, and answer or demur to the complaint of the said plaintiff.\u201d\nIt appears that a proper notice of summons and. warrant of attachment was duly published as required by law.\nThereafter, on 7 January, 1924, the clerk of the Superior Court entered the following judgment: \u201cThis cause coming on to be heard before the undersigned, and it appearing that the defendant has been properly served with notice of this action by publication as provided for by law, and it further appearing that the plaintiff has filed a duly verified complaint, and that from said complaint it appears that the defendant is indebted to the plaintiff in the sum of four thousand two hundred eighteen and 50/100 dollars, with interest from 1 June, 1921, a warrant of attachment was issued against the property of the defendant, and that pursuant to said warrant of attachment on the following described tract of land: Eying and being in Ruffin Township, Rocking-ham County, State of North Carolina, and containing 356 acres, and adjoining the lands of J. M. Walsh, the Alverson Place, and the lands of Charlie Tates, and being known as the Chandler Mill Tract. The part of the said land of which was levied on being all the right, title and interest of George W. Bethell. It is, therefore, ordered, considered and adjudged that the plaintiff recover of the defendant the sum of four thousand two hundred eighteen and 50/100 dollars, and interest from 1 July, 1930, and the costs of this action. And it is further ordered, considered and adjudged that this judgment is a specific lien on the above-described tract of land as to all right, title and interest of the said defendant, George W. Bethell, and it is further ordered, considered and adjudged that execution be issued against said land to satisfy said judgment.\u201d\nSubsequently, on 10 August, 1929, George W. Bethell and wife conveyed his interest in the land described in the judgment in the case of Lee v. Bethell, to W. D. Bethell, the plaintiff in the present action, and this deed was duly recorded. Thereafter, on 11 November, 1929, the plaintiff, W. D. Bethell, brought the present suit against B. F-. Lee, alleging that the judgment of Lee v. Bethell, rendered on 7 January, 1924, was irregular, mill and void; that the attachment in said action was irregular and void, and that the said judgment constituted a cloud upon plaintiff\u2019s title. Wherefore, he prays that the judgment entitled B. F. Lee v. George W. Bethell be canceled and declared null and void.\u201d\nWhen the cause came on for hearing the record disclosed that the court was of the opinion that the affidavits offered in the attachment suit of Lee v. Bethell \u201cwere insufficient as a matter of law, upon which to base an order for summons to be made by publication and to issue warrant of attachment.\u201d The court further charged the jury that if they believed the evidence they would answer the issues in favor of plaintiff.\nUpon the verdict, judgment was rendered that the warrant of attachment in the action of B. P. Lee v. George W. Bethell \u201cwith its purported or attempted service, is void and of no legal force and effect and that the same likewise be canceled and held for naught.\u201d It was further ordered that the judgment and attachment proceeding cast a cloud upon plaintiff\u2019s title and said proceedings were ordered stricken from the record.\nFrom judgm\u00e9nt so rendered the. defendant appealed.\nWm. Reid Dalton for plaintiff.\nGiidewell, Dwm & Gwyn for defendant." }, "file_name": "0755-01", "first_page_order": 823, "last_page_order": 827 }