{
  "id": 8604594,
  "name": "CHRISTOPHER W. RYAN v. R. O. BATDORF",
  "name_abbreviation": "Ryan v. Batdorf",
  "decision_date": "1945-05-23",
  "docket_number": "",
  "first_page": "228",
  "last_page": "230",
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      "cite": "225 N.C. 228"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T21:52:44.450219+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "CHRISTOPHER W. RYAN v. R. O. BATDORF."
    ],
    "opinions": [
      {
        "text": "Denny, J.\nIt has been held by this Court that \u201cTbe character of a process purporting to be original is not changed by an endorsement of tbe word \u2018alias.\u2019 Mintz v. Frink, 217 N. C., 101, 6 S. E. (2d), 802. Tbe character of tbe process purporting to be original may be changed, however, when tbe process is made referable to tbe original writ, and sued out as required by G. S., 1-95. It is said in Hatch v. R. R., 183 N. C., 617, 112 S. E., 529, quoting from Chitty\u2019s Practice: \u2018If it be necessary to continue tbe first writ of summons, then an alias or pluries may be issued into tbe same or another county; and it is very essential to take care that tbe first writ, whether of summons or capias, be in due time returned non est inventus, and that every continued process to save tbe statute of limitations must have a memorandum endorsed or subscribed, specifying the date of the first writ.\u2019 Ohitty\u2019s Practice, 408; 3 Bl., 280, et seq.; Tidd\u2019s Practice, 111; Elliott\u2019s Gen. Practice, 459; 20 Ency. P. & P., 1178; 32 Cyc., 445; 21 R. C. L., 1266.\u201d\nWhile an original summons cannot be changed into an alias summons by merely endorsing the word \"alias\u201d thereon, such process, however, can be converted into an alias by a memorandum or order endorsed or subscribed thereon specifying the date of the original writ. The sole purpose of a summons is to bring a party into court and to notify him that a complaint has been or will be filed against him. Battle v. Baird, 118 N. C., 854, 24 S. E., 668. An alias or pluries summons, improperly issued as such, may still be sufficient as an original summons. Neely v. Minus, 196 N. C., 345, 145 S. E., 771. But when it is desired that the action shall date from the date of the issuance of the original summons, or when it is necessary for it to do so, in order to toll the statute of limitations, the successive writs must show their relation to the original process.\nThe information contained on the face of the summons in the instant case made it referable to the original writ as required by our decisions, and it is, therefore, a valid alias. Hatch v. R. R., supra.\nThe judgment of the court below is\nAffirmed.",
        "type": "majority",
        "author": "Denny, J."
      }
    ],
    "attorneys": [
      "E. L. Yow and Rountree & Rountree for plaintiff.",
      "Isaac G. Wright for defendant."
    ],
    "corrections": "",
    "head_matter": "CHRISTOPHER W. RYAN v. R. O. BATDORF.\n(Filed 23 May, 1945.)\n1. Process \u00a7 1\u2014\nThe sole purpose of a summons is to bring a party into court and to notify him that a complaint has been or will be filed against him.\n2. Process \u00a7\u00a7 2, 12\u2014\nAn alias or pluries summons, improperly issued as such, may still be sufficient as an original summons. But when it is desired that the action shall date from the issuance of the original summons, or when it is necessary for it to do so, in order to toll the statute of limitations, the successive writs must show their relation to the original process.\n3. Process \u00a7 12\u2014\nWhile an original summons cannot be changed into an alias summons by merely endorsing the word \u201calias\u201d thereon, such process, however, can be converted into an alias by a memorandum or order, endorsed or subscribed thereon, specifying the date of the original writ.\nAppeal by defendant from Stevens, J., at October Term, 1944, of New HaNovee.\nSummons issued 28 March, 1944, returned with the following endorsement thereon: \u201cAfter due and diligent search R. 0. Batdorf is not to be found in New Hanover County. This 7th day of April, 1944. C. David Jones, Sheriff \u2014 By Sam Yopp, Deputy.\u201d\nComplaint was filed at the time the original process was. issued.\nOn 12 April, 1944, plaintiff requested tbe issuance of an alias summons, and tbe clerk of tbe Superior Court of New Hanover County entered tbe following order: \u201cIt appearing to tbe Court that summons was issued to tbe Sheriff of New Hanover County on tbe 28tb day of March, 1944, for service on tbe defendant, R. 0. Batdorf, and has been returned as follows: \u2018After due and diligent search R. 0. Batdorf is not. to be found in New Hanover County. This 7 April, 1944,\u2019 and it now appearing to tbe Court that tbe defendant is now to be found in New Hanover County. It is therefore Ordered that Alias Summons be issued to tbe said Sheriff of New Hanover County for service on tbe said defendant. Witness my band and seal of office, this 12th day of April, 1944. A. L. Meyland, Clerk Superior Court.\u201d\nWhereupon tbe clerk marked an ordinary summons \u201cAlias Summons\u201d and wrote tbe above order on tbe face of tbe alias summons in tbe upper right-band corner thereof. Tbe alias summons was served on tbe defendant 14 April, 1944, by leaving copies of tbe alias summons and complaint with tbe defendant.\nTbe defendant, through bis counsel, entered a special appearance before tbe clerk of tbe Superior Court of New Hanover County, on 9 May, 1944, and moved to dismiss tbe action on tbe ground that tbe purported process was invalid as an alias summons, and subject to dismissal as an original process, because no cost bond or complaint bad been filed as of tbe date of its issuance.\nTbe motion was overruled, and tbe defendant appealed to tbe judge of tbe Superior Court. Tbe ruling of tbe clerk of tbe Superior Court was sustained by tbe judge on 17 October, 1944.\nDefendant appeals to the Supreme Court, assigning error.\nE. L. Yow and Rountree & Rountree for plaintiff.\nIsaac G. Wright for defendant."
  },
  "file_name": "0228-01",
  "first_page_order": 276,
  "last_page_order": 278
}