{ "id": 8599474, "name": "M. L. MINTZ v. SAM JOE FRINK", "name_abbreviation": "Mintz v. Frink", "decision_date": "1940-02-02", "docket_number": "", "first_page": "101", "last_page": "105", "citations": [ { "type": "official", "cite": "217 N.C. 101" } ], "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": "64 N. W., 1036", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "4 Wis., 288", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8713235 ], "opinion_index": 0, "case_paths": [ "/wis/4/0288-01" ] }, { "cite": "15 N. W., 350", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "14 Neb., 236", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4401559 ], "opinion_index": 0, "case_paths": [ "/neb/14/0236-01" ] }, { "cite": "6 Neb., 349", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2874630 ], "opinion_index": 0, "case_paths": [ "/neb/6/0349-01" ] }, { "cite": "5 So., 37", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "41 La. Ann., 37", "category": "reporters:state", "reporter": "La. Ann.", "case_ids": [ 5291720 ], "opinion_index": 0, "case_paths": [ "/la-ann/41/0037-01" ] }, { "cite": "221 N. Y. S., 10", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "220 App. Div., 211", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 4835839 ], "opinion_index": 0, "case_paths": [ "/ad/220/0211-01" ] }, { "cite": "14 S. E., 106", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "109 N. C., 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651312 ], "opinion_index": 0, "case_paths": [ "/nc/109/0672-01" ] }, { "cite": "48 N. C., 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2086733 ], "opinion_index": 0, "case_paths": [ "/nc/48/0432-01" ] }, { "cite": "26 S. E., 27", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "119 N. C., 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655431 ], "opinion_index": 0, "case_paths": [ "/nc/119/0489-01" ] }, { "cite": "100 S. E., 182", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "177 N. C., 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654687 ], "opinion_index": 0, "case_paths": [ "/nc/177/0461-01" ] }, { "cite": "19 N. C., 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274814 ], "opinion_index": 0, "case_paths": [ "/nc/19/0107-01" ] }, { "cite": "145 S. E., 771", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626765 ], "opinion_index": 0, "case_paths": [ "/nc/196/0345-01" ] }, { "cite": "64 N. C., 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682899 ], "opinion_index": 0, "case_paths": [ "/nc/64/0427-01" ] }, { "cite": "131 S. E., 274", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 806", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615058 ], "opinion_index": 0, "case_paths": [ "/nc/190/0806-01" ] }, { "cite": "112 S. E., 529", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N. C., 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657654 ], "opinion_index": 0, "case_paths": [ "/nc/183/0617-01" ] }, { "cite": "86 N. C., 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273070 ], "opinion_index": 0, "case_paths": [ "/nc/86/0126-01" ] }, { "cite": "46 N. C., 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681566 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/46/0122-01" ] } ], "analysis": { "cardinality": 582, "char_count": 13295, "ocr_confidence": 0.483, "pagerank": { "raw": 3.356597670165966e-07, "percentile": 0.8750330617730995 }, "sha256": "ed7a0a4282506c28059fef0145e9240aca4cba5fbfe3fbdd8312a862640db3f8", "simhash": "1:8fad00ec99ce99f3", "word_count": 2332 }, "last_updated": "2023-07-14T22:38:29.672243+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "M. L. MINTZ v. SAM JOE FRINK." ], "opinions": [ { "text": "Winborne, J.\nThe questions involved on this appeal are these:\n(1) Is service of summons on Sunday valid? (2) Does marking an original summons \u201calias\u201d constitute it an alias summons? (3) When summons has been served on defendant on Sunday and when alias summons has not been issued within the time limited by statute, is defendant, by motion made on special appearance, entitled to have .the action dismissed for want of jurisdiction of person? (4) When defendant enters an appearance, designated special, and moves to dismiss the action not only for invalid service of summons, that is, want of jurisdiction of person, but also for lack of justification of plaintiff\u2019s bond as security for costs, is the appearance general or special ?\nThe law as established in this State answers the first and second questions in the negative, and the third in the affirmative. While as to the fourth the exact question has not been considered heretofore in this State, the rule of reason prompts us to hold the appearance is not general.\n(1) The statute, C. S., 3958, provides that \u201cit shall not be lawful for any sheriff, constable or other officer to execute any summons, capias or other process on Sunday, unless the same be issued for treason, felony or misdemeanor.\u201d See Bland v. Whitfield, 46 N. C., 122; Devries v. Summitt, 86 N. C., 126. Hence, in the present action service of original summons on Sunday is invalid and not binding on defendant. Having been so adjudged and the return having been stricken out at January Term, 1939, the status of the process was the same as if service had not been made. Hatch v. R. R., 183 N. C., 617, 112 S. E., 529. The plaintiff then had the right, given by statute, C. S., 480, to \u201csue out an alias . . . summons, returnable in the same manner as original process\u201d\u2014 a right which could and must have been exercised at any time within ninety days next after the date of the original summons, 26 November, 1938. McGuire v. Lumber Co., 190 N. C., 806, 131 S. E., 274.\n(2) In order to preserve a continuous single action referable to the date of its institution the original ineffective summons must be followed by process successively and properly issued. Hatch v. R. R., supra, and McGuire v. Lumber Co., supra, and cases cited. An alias follows next after the original. There should be something in the body of the second summons to indicate its alleged relation to the original. Hatch v. B. B., supra. The character of process purporting to be original is not changed by an endorsement of the word \u201calias.\u201d Such endorsement forms no part of the record, and could not have the effect of changing the tenor from an original to an alias summons. See Simpson v. Simpson, 64 N. C., 427, as applied to executions. The issuance of a second summons in the form of an original, without something in the body of it to indicate its relation to the original, has the force and effect of initiating an independent action.\n(3) Section 481 of Consolidated Statutes of 1919 provides that \u201ca failure to keep up the chain of summonses issued against a party, not served, by means of an alias or pluries summons, is a discontinuance as to such party; and if a summons is served after a break in the chain it is a new action as to such party, begun when the summons was issued.\u201d See Hatch v. R. R., supra; Neely v. Minus, 196 N. C., 345, 145 S. E., 771.\nIn the ease in-hand the service of summons being invalid and an alias as required by statute not having been issued, nothing else appearing, the action was discontinued at the expiration of ninety days next after the issuance of the original summons. The order of Harris, J., that the clerk issue an alias summons is merely directory, and does not and cannot have the effect of suspending the provisions of the statute. Likewise, after the expiration of period provided in the statute within which an alias summons can and must be issued, Stevens, J., was without authority to order an alias summons issued. Therefore, at September Term, 1939, upon the finding that the summons issued 12 January, 1939, was not in fact an alias summons, nothing else appearing, a discontinuance of the action as originally instituted should have been decreed.\n(4) However, plaintiff contends that, notwithstanding the right of defendant to appear specially to make the motion upon which the court struck out the erroneous return on the original summons and declared to be invalid the service as made, or to move to dismiss for lack of jurisdiction of his person, the defendant, by coupling in the motion the further purpose to dismiss the action for failure to justify plaintiff\u2019s bond as security for costs, appeared generally. With respect thereto it is our view, and we hold, that the matter of moving to dismiss the action for failure to comply with statutory requirement, C. S., 493, relating to security for costs pertains to a procedural question, apart from the merits of the action, and such motion may be invoked as incidental to jurisdiction.\nThe statute, C. S., 493, in effect provides that, unless plaintiff makes a deposit of cash therefor or obtain permission to sue in forma pauperis, tbe clerk, before issuing summons, should require tbe plaintiff to give as security for costs \u201can undertaking witb sufficient surety in tbe sum of two hundred dollars, witb tbe condition that it will be void if tbe plaintiff pays all tbe costs which tbe latter recovers of him in tbe action.\u201d Tbe sole object of tbe bond is to secure tbe defendant. Brittain v. Howell, 19 N. C., 107; Waldo v. Wilson, 177 N. C., 461, 100 S. E., 182. Failure of tbe clerk to require this may subject him to penalty. Dale v. Presnell, 119 N. C., 489, 26 S. E., 27. But this Court has uniformly held that tbe undertaking is not a condition precedent so as to make a summons void if it is not given. McIntosh P. & P., 331; Russell v. Saunders, 48 N. C., 432. The decisions are likewise uniform in bolding that if tbe summons be issued without tbe undertaking tbe defendant may make a motion to dismiss tbe action for such defect, but this motion must be made promptly. McIntosh P. & P., 331; Cooper v. Warlick 109 N. C., 672, 14 S. E., 106.\nCourts in only a few other jurisdictions have considered tbe identical question. In New York (Wendel v. Connor, 220 App. Div., 211, 221 N. Y. S., 10) and in Louisiana (Collier v. Morgan\u2019s L. & T. R. and S. S. Co., 41 La. Ann., 37, 5 So., 37) tbe courts bold tbe appearance to be special, while in Nebraska (Healy v. Aultman, 6 Neb., 349, and Raymond Bros. v. Strine, 14 Neb., 236, 15 N. W., 350) and in Wisconsin (Stonach v. Glessner, 4 Wis., 288) tbe courts bold the appearance to be general. But see Kingsley v. Great Northern Ry. Co. (Wis.), 64 N. W., 1036, in which tbe Wisconsin Court bolds that where defendant asks that service of summons be set aside and that \u201ctbe action be dismissed, witb costs,\u201d and again, \u201cwitb costs of motion,\u201d it must be construed as claim for only such costs as tbe court might properly grant on setting aside tbe service of tbe summons, and, therefore, was not a waiver of tbe objection, or a general appearance. Tbe New York decision is more convincing in that it is predicated upon a statute, sec. 237 of tbe Civil Practice Act of New York, which, in part, is identical witb our statute, C. S., 490, which provides that a \u201cvoluntary appearance of a defendant is equivalent to personal service of summons upon him.\u201d Also in connection witb tbe New York decision it is significant to note that pertinent sections of tbe Civil Practice Act of New York provides that \u201ctbe defendant . . . may require security for costs to be given, . . .\u201d sec. 1522, and when this is done \u201ctbe court ... or a judge thereof . . . must make an order requiring tbe plaintiff . . .\u201d to make deposit or to file bond; \u201cand staying all other proceedings on tbe part of tbe plaintiff, except to review or vacate tbe order, until tbe payment or filing, and notice thereof,\u201d sec. 1524.\nTbe judgment entered at September Term, 1939, is\nEeversed.", "type": "majority", "author": "Winborne, J." } ], "attorneys": [ "E. K. Bryan for plaintiff, appellee.", "8. B. Frinh and I. 0. Wright for defendant, appellant." ], "corrections": "", "head_matter": "M. L. MINTZ v. SAM JOE FRINK.\n(Filed 2 February, 1940.)\n1. Process \u00a7 2\u2014\nSummons in a civil action served on Sunday is invalid and does not bind defendant, C. S., 3958, and tbe status of tbe process is tbe same as if service had not been made.\n2. Process \u00a7 12\u2014\nWhen tbe original summons is invalid, plaintiff is entitled to have alias summons issued within 90 days next after the date of original summons, C. S., 480, but in order to prevent a discontinuance alias and pluries summons must be successively and properly issued.\n3. Same \u2014 Summons original in form, is not constituted an alias summons by endorsement of word \u201calias\u201d at its top.\nTbe court adjudged the original process invalid because served on Sunday and ordered alias summons to be issued. Thereafter summons in the form of an original summons but marked at the top \u201calias summons\u201d was issued and served. Held: The second summons having the form and tenor of original process without anything in the body of the summons to show its relation to the original summons is not changed from an original to an alias summons by the endorsement, and the order for the issuance of an alias summons, being merely directory, does not constitute the second summons an alias.\n4. Same\u2014\nService of the original summons in this action was void because made on a Sunday and an \u201calias\u201d summons thereafter issued was ineffective because not in the form prescribed by statute. Held: Upon the expiration of 90 days from the date of the original summons there was a discontinuance, and the court was without authority thereafter to order the issuance of an alias summons.\n5. Appearance \u00a7 1\u2014\nA motion to dismiss for failure of plaintiff to file security for costs as required by C. S., 493, pertains to a procedural question apart from the merits of the action, and an appearance for the purpose of making this motion, and a motion to dismiss for want of jurisdiction, does not constitute a general appearance, C. S., 490.\nAppeal by defendant from Stevens, J., at September Civil Term, 1939, of RruNswick.\nCivil action to recover damages for alleged slander.\nSummons in this action, issued 26 November, 1938, was returned witb endorsement showing service was made upon defendant on the same date.\nOn 12 December, 1938, defendant, after notice to attorneys for plaintiff, entered special appearance and moved to dismiss the action for that the summons was served on Sunday, 27 November, 1938, contrary to law, and for that cost bond is not justified by the surety as required by the statute, and there is no order authorizing the plaintiff to sue without giving bond'.\nUpon the hearing of the motion at January Term, 1939, Harris, J., finding as a fact from the affidavits filed that the summons was served on Sunday, 27 November, 1938, held that such service is a nullity, and ordered the return to be stricken out; and, upon plaintiff\u2019s motion for an alias summons, the court then ordered that the case be remanded to the clerk of Superior Court, and that he be, and is authorized to serve immediately an alias summons with an attached copy of the complaint; and further ordered that plaintiff give a justified cost bond within ten days or the action is dismissed. Defendant excepted to the order for alias summons and to the refusal to dismiss the action.\nThereafter, on 12 January, 1939, \u201cin compliance with\u201d the said order, the assistant clerk of Superior Court issued a summons in form of an original summons, but marked at the top: \u201cAlias Summons,\u201d which was returned by the sheriff endorsed \u201cServed January 13, 1939, by delivering a copy of the within summons and a copy of the complaint\u201d to defendant.\nSubsequently, on 7 February, 1939, defendant, again after notice to attorneys for plaintiff, entered special appearance and moved to dismiss the action and to strike out the officer\u2019s return on the summons marked \u201cAlias Summons\u201d and dated 12 January, 1939, for that there was no complaint filed for that suit, and there was no order extending the time for filing the complaint, and there was no cost bond filed, and for that the same is not an alias summons. Upon hearing of the motion on 4 March, 1939, the clerk, upon finding that the summons issued on 12 January, 1939, was in compliance with the order of Harris, J., and being of opinion that same is a valid alias summons, denied the motion to dismiss. Plaintiff excepted and appealed to Superior Court.\nUpon such appeal, heard at September Civil Term, 1939, and upon finding as fact that the summons marked \u201cAlias Summons\u201d issued by the clerk on 12 January, 1939, was not in fact an alias summons, and that same was actually served upon the defendant without a copy of the complaint, the court, being of opinion that such summons so marked and served is inoperative, but being further of opinion that the court has \u201cinherent right to correct its mistakes and errors,\u201d denied motion of defendant to dismiss the action, and ordered that the canse be remanded to the clerk of Superior Court with direction to him to issue at once an alias summons and attach thereto copy of complaint for service on defendant.\nDefendant appeals therefrom to the Supreme Court, and assigns error.\nE. K. Bryan for plaintiff, appellee.\n8. B. Frinh and I. 0. Wright for defendant, appellant." }, "file_name": "0101-01", "first_page_order": 167, "last_page_order": 171 }