{ "id": 8614585, "name": "V. D. FOSTER v. NEWBY HOLT and CARL THOMAS HOLT", "name_abbreviation": "Foster v. Holt", "decision_date": "1953-04-08", "docket_number": "", "first_page": "495", "last_page": "498", "citations": [ { "type": "official", "cite": "237 N.C. 495" } ], "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": "24 S.E. 2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632195 ], "opinion_index": 0, "case_paths": [ "/nc/222/0704-01" ] }, { "cite": "21 S.E. 2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628783 ], "opinion_index": 0, "case_paths": [ "/nc/222/0095-01" ] }, { "cite": "10 How. Pr. 48", "category": "reporters:state", "reporter": "How. Pr.", "case_ids": [ 2196770 ], "opinion_index": 0, "case_paths": [ "/how-pr/10/0048-01" ] }, { "cite": "176 S.E. 738", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624752 ], "opinion_index": 0, "case_paths": [ "/nc/207/0237-01" ] }, { "cite": "54 S.E. 440", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "141 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253854 ], "opinion_index": 0, "case_paths": [ "/nc/141/0694-01" ] }, { "cite": "69 S.E. 2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621785 ], "opinion_index": 0, "case_paths": [ "/nc/235/0140-01" ] }, { "cite": "175 S.E. 299", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N.C. 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632976 ], "opinion_index": 0, "case_paths": [ "/nc/206/0798-01" ] }, { "cite": "86 S.E. 518", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "169 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660157 ], "opinion_index": 0, "case_paths": [ "/nc/169/0542-01" ] }, { "cite": "29 S.E. 336", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "122 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657431 ], "opinion_index": 0, "case_paths": [ "/nc/122/0128-01" ] }, { "cite": "10 L.R.A. 361", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "12 S.E. 109", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "107 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273871 ], "opinion_index": 0, "case_paths": [ "/nc/107/0420-01" ] }, { "cite": "94 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651435 ], "opinion_index": 0, "case_paths": [ "/nc/94/0514-01" ] } ], "analysis": { "cardinality": 452, "char_count": 7982, "ocr_confidence": 0.486, "pagerank": { "raw": 1.071764359919125e-07, "percentile": 0.5599202887890375 }, "sha256": "f949631cef4c17d923c93d76d2f1854f22bb8ba64c4c8a8f16daeb89475bb82f", "simhash": "1:ba2de429f49a1b00", "word_count": 1407 }, "last_updated": "2023-07-14T15:56:56.799237+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "V. D. FOSTER v. NEWBY HOLT and CARL THOMAS HOLT." ], "opinions": [ { "text": "DeNNY, J.\nThe method of serving process on a nonresident as provided in G.S. 1-105 and 1-106 is ineffective to obtain service of process on a citizen and resident of this State while such citizen is residing temporarily outside the State, or is in the armed services of the United States and stationed in another state or foreign country.\nTherefore, at the time Judge Hatch dismissed this action as to the defendant Carl Thomas Holt, at the October Term, 1952, of the Superior Court of Randolph County, the infant defendant Carl Thomas Holt had not been served with legal process. However, the plaintiff contends that Judge Hatch was without authority to dismiss the action since at the time he made his ruling and entered his order, there was outstanding a valid alias summons and that the time for its service had not expired. Be that as it may, no exception was entered to the ruling or appeal taken therefrom. Hence, the action was terminated at that time as to Carl Thomas Holt and it is now too late to challenge the validity of the ruling. Phipps v. Pierce, 94 N.C. 514; Ferrell v. Thompson, 107 N.C. 420, 12 S.E. 109, 10 L.R.A. 361; Barber v. Buffaloe, 122 N.C. 128, 29 S.E. 336; Harrison v. Dill, 169 N.C. 542, 86 S.E. 518; S. v. Bittings, 206 N.C. 798, 175 S.E. 299; Sprinkle v. Reidsville, 235 N.C. 140, 69 S.E. 2d 179.\nOn the motion to strike, the rule laid down in Winders v. Hill, 141 N.C. 694, 54 S.E. 440, and followed in Revis v. Asheville, 207 N.C. 237, 176 S.E. 738, and other cases, is applicable here. In the Winders case, this Court said: \u201cThe function of a complaint is not the narration of the evidence, but a statement of the substantive and constituent facts upon which the plaintiff\u2019s claim to relief is founded. The bare statement of the ultimate facts is all that is required, and they are always such as are directly put in issue. Probative facts are those which may be in controversy, but they are not issuable. Facts from which the ultimate and decisive facts may be inferred are but evidence, and therefore probative. Those from which a legal conclusion may be drawn and upon which the right of action depends are the issuable facts which are proper to be stated in a pleading. The distinction is well marked in the following passage: \u2018The ultimate facts are those which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of those facts.' Wooden v. Strew, 10 How. Pr. 48; 4 Enc. of Pl. and Pr., p. 612.\u201d\nIn McIntosh, North Carolina Practice and Procedure, section 379, page 389, it is said: \u201cThe material, essential, or ultimate facts upon which the right of action is based should be stated, and not collateral or evidential facts, which are only to be used to establish the ultimate facts. The plaintiff is to obtain relief only according to the allegations in his complaint, and therefore he should allege all of the material facts, and not the evidence to prove them, . . .\u201d Hawkins v. Moss, 222 N.C. 95, 21 S.E. 2d 873; Truelove v. R. R., 222 N.C. 704, 24 S.E. 2d 537.\nThe judgment of the court below is\nAffirmed.", "type": "majority", "author": "DeNNY, J." } ], "attorneys": [ "Ottway Burton for plaintiff, appellant.", "H. M. Robins for defendants, appellees." ], "corrections": "", "head_matter": "V. D. FOSTER v. NEWBY HOLT and CARL THOMAS HOLT.\n(Filed 8 April, 1953.)\n1. Process \u00a7 10\u2014\nService of process under G.S. 1-105 and G.S. 1-106 is ineffective to obtain service on a citizen and resident of tbis State while such citizen is residing temporarily outside this State, or is in the armed services of the United States and stationed in another state or foreign country.\n2. Appeal and Error \u00a7 9\u2014\nWhere there is ho appeal from judgment dismissing the action as to one defendant for failure of service of process, plaintiff may not later contend that the judge was without authority to dismiss the action because there was an outstanding valid alias summons at the time the ruling was made.\n3. Pleadings \u00a7 3a\u2014\nThe complaint should allege the ultimate facts upon which plaintiff\u2019s claim for relief is founded and not the evidential facts required to prove the existence of the ultimate facts.\n4. Pleadings \u00a7 31\u2014\nMotion by a defendant in an automobile accident case to strike all reference in plaintiff\u2019s pleading to collision and liability insurance on the cal-is properly allowed.\nAppeal by plaintiff from Moore, J., December Term, 1952, of Eak-dolph.\nTbis is an action to recover for personal injuries and property damages resulting from tbe alleged negligence of the defendant, Carl Tbomas Holt.\nTbe plaintiff alleges in bis complaint tbat be was injured and damaged in an automobile collision on or about 15 July, 1951, between bis pickup truck and an automobile owned by tbe defendant Newby Holt and driven by bis son Carl Tbomas Holt; tbat tbe automobile was being driven witb tbe consent and permission of tbe defendant Newby Holt; and tbat tbe defendant Newby Holt provided the automobile for the use and enjoyment of bis family for general family purposes.\nTbe defendant Newby Holt filed an answer in wbicb be denied tbat be was the owner of tbe automobile involved in tbe collision, and alleged tbat it belonged to bis son, Carl Tbomas Holt, who was a minor over eighteen but under twenty-one years of age; tbat prior to tbe collision in question tbe said Carl Tbomas Holt bad been emancipated by bis parents and was at tbe time of tbe collision working for himself.\nIt further appears from tbe record tbat Carl Tbomas Holt is now in tbe United States Navy; tbat tbe summons issued in this action has never been personally served on him, and tbat be is still under twenty-one years of age.\nAfter the return of tbe original summons unserved as to Carl Tbomas Holt, the plaintiff undertook to have process and a copy of the complaint served on him pursuant to tbe provisions of General Statutes 1-105 and 1-106, and caused to be issued to tbe Sheriff of Wake County, under date of 21 August, 1952, an instrument purporting to be an alias summons, directing him to serve the same upon the Commissioner of Motor Yebicles of North Carolina as statutory attorney for Carl Tbomas Holt. A copy of tbe complaint and alias summons were actually delivered to Carl Tbomas Holt by registered mail. Thereafter, a guardian ad litem for Carl Tbomas Holt, tbe infant defendant, was appointed, who made a special appearance on bis behalf and moved to dismiss tbe action as to him.\nThis matter came on for bearing on tbe special appearance and motion to dismiss tbe action, as to Carl Tbomas Holt, for lack of service of summons on him, at tbe October Term, 1952, of the Superior Court of Randolph County, before tbe Honorable William T. Hatch, Judge Presiding.\nTbe court held, it having been made to appear tbat Carl Tbomas Holt is a resident of tbe State of North Carolina, tbat tbe attempted service on him was and is null and void and tbat tbe action as to him should be dismissed, and entered judgment accordingly. No appeal was taken from this ruling. But thereafter, on 5 November, 1952, tbe plaintiff caused to be issued what purported to be an alias summons and bad it served on tbe same date on tbe guardian ad litem for Carl Tbomas Holt.\nIn the meantime, tbe plaintiff filed a reply to tbe answer of tbe defendant Newby Holt, in wbicb tbe plaintiff denied tbat Carl Tbomas Holt was tbe owner of tbe automobile involved in tbe collision in question, and again alleged tbat tbe car belonged to tbe defendant Newby Holt; tbat be took title thereto at the time of its purchase and also took out collision and liability insurance thereon.\nThe defendant Newby Holt filed a motion to strike all references to collision and liability insurance in the plaintiff's reply.\nThe matter came on for hearing at the December Term, 1952, of the Superior Court of Randolph County at which time the court held \u201cthat this case has been and is dismissed as to the said Carl Thomas Holt,\u201d and allowed the motion to strike. From the judgment entered on the above rulings, the plaintiff appeals and assigns error.\nOttway Burton for plaintiff, appellant.\nH. M. Robins for defendants, appellees." }, "file_name": "0495-01", "first_page_order": 539, "last_page_order": 542 }