{
  "id": 11276480,
  "name": "S. P. SMITH v. J. D. McILWAINE",
  "name_abbreviation": "Smith v. McIlwaine",
  "decision_date": "1869-01",
  "docket_number": "",
  "first_page": "95",
  "last_page": "98",
  "citations": [
    {
      "type": "official",
      "cite": "63 N.C. 95"
    }
  ],
  "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": [],
  "analysis": {
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    "ocr_confidence": 0.462,
    "sha256": "2f170d81c1369f6a5239d8edd41536950a013cd6cfcc2d2ef2fd069ca058c7e6",
    "simhash": "1:dd3327f70ad93cdb",
    "word_count": 1243
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  "last_updated": "2023-07-14T15:51:48.011339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "S. P. SMITH v. J. D. McILWAINE."
    ],
    "opinions": [
      {
        "text": "Peakson, C. J.\nThis case involves a consideration of subdivisions 3 and 4 of \u00a7. 8, of the Code of Civil Procedure\u00bb These two sub-divisions are not intelligible without supplying the words \u201c but such actions \u201d before the verb \u201c shall be governed,\u201d where it first occurs in the sub-division. Eor the preposition \u201cto,\u201d in the preliminary clause \u2014 \u201cThe followi: g enactments are applicable to,\u201d governs the word \u201c actions\u201d in sub-divisions 3 and 4. So \u201c actions \u201d is in the objective case, and cannot be the nominative to the verb \u201c shall be governed.\u2019\u2019 Supply the words \u201c such actions \u201d as a nominative. This corrects the grammatical error, and makes sense..\nOur task is to construe sub-division 4. It embraces two' classes: 1st, \u201cActions commenced prior to the adoption of the Code on contracts not embraced by the stay law ordinance:\u201d\u2019 this class is disposed of in Teague v. James, and Gaither v Gibson, ante 91 and 93; 2nd, Actions commenced on such contracts'after the adoption of the Code. Our case falls under the-second class. The construction depends upon the effect to be; given to the words \u201c as near as may be.\u201d We think the meaning is, as near as may be consistent with the changes made by the Constitution and Code of Civil Procedure. In other-words, all actions commenced after the adoption of the Code* are to conform to its provisions, unless there be some reason for departing from the rules therein prescribed, as in case of' actions subject to the Stay Law Ordinance.\nThis construction cannot be materially varied by the fact; that according to sub-division 1, the Code is to prevail \u201c as- > far as may be,\u201d and by sub-divisions 3 and 4, the practice and. procedure, under the existing law is to govern \u201c as near as-may be.\u201d This shading is too slight for any practical purpose. The meaning is, that in regard to actions commenced after the; adoption of the Code, on contracts not embraced by the Stay Law Ordinance, the procedure is to be as before, except where the Code has made such changes as to make the old Code of Procedure inapplicable. So the construction is clear.\nBut the application is difficult. As to the first class there is but little difficulty in making the application of the Code as thus construed, and the old mode of procedure covers muck ground.\nBut as to the second class the old mode -of procedure cam cover but little if any ground; indeed this class ought to have-been set out by itself in a sub-division 5, corresponding withi 'subdivisi\u00f3n 2, and it is obvious that the .attempt to compress both classes into one sentence has produced confusion; brevity was consulted at the expense of perspicuity.\nTike defendant says this debt was contracted prior to the adoption of the Code, and tlie procedure ought to bare been by process of original attachment, in which case the affidavit must state that the ordinary process of law could not be served.\nThe plaintiff replies that the Code requires the procedure to be by summons, and that the warrant of attachment issues upon an affidavit that the defendant is a non-resident, without requiring the statement \u2018\u2018 That the ordinary process of law cannot be served,\u201d and this mode of procedure supersedes the old mode of original attachment. To this the defendant rejoins \u2014 \u201c suppose it to be so, the Code provides, \u00a7 73, that Civil actions shall be commenced by summons, returnable within a certain number of days- before the Clerk of the Superior Court, before whom the pleadings are to be made up; but your summons is returnable before the Judge at the next term of the Superior Court. There is no provision made by the Code for this procedure, and the pleadings cannot be made up before the Judge in term time, for \u00a7 94 requires the demurrer or answer to be filed in the office of the Clerk of the Superior Court. So the old mode of procedure cannot be acted on, as the Code makes no provision for carrying it out, and the words \u2018 as far as may be \u2019 can have no effect on the case. \u201d This objection is fatal.\nOur construction is made the more satisfactory, by a view which his Honor, Judge Tourgee, presents in The Raleigh National Bank v. Johnson, and Swepson v. Harvey, at this term.\nHis Honor adopts our construction that the summons must be returnable before the Clerk, on the ground that no provision is made by the Code for making up the pleadings except before the Clerk, and supports his construction by the position that \u00a7 405 of the Code, makes one specific and clearly defined exception to the rule laid down in \u00a7 73, to wit: in actions embraced by the Ordinance of March 14th 1868, in which case the summons \u201c shall be made returnable to the term of the Superior Court therein designated,\u201d and that no other exception is made in the Code of Civil Procedure, to the rule laid down in \u00a7 73.\nIt was suggested that tbe purpose was to make a kind of stay law in respect to debts contracted before the ratification of the Code, by giving to debtors the same delay as under the old mode; but the difficulty is that the Code fails to provide a mode in which that can be done; that is it does not authorize the summons in such cases to be returned before the Judge in term time, instead of to the Clerk within a certain number of days, and makes no provision whereby the pleading can be made up before the Judge in term time.\nThe action ap well as the attachment should have been dismissed, as having been commenced irregularly.\nThe position that this objection is in the nature of a plea in abatement, and should have been taken before the Clerk, cannot avail, for it was the fault of the plaintiff to take the case away from the Clerk by having the summons returnable before the Judge in term time.\nPer Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "Peakson, C. J."
      }
    ],
    "attorneys": [
      "Dowd, for the appellant.",
      "Wilson, contra."
    ],
    "corrections": "",
    "head_matter": "S. P. SMITH v. J. D. McILWAINE.\n'TThe word \u201cactions,\u201d in the first line of paragraphs 3 and 4, in \u00a7 8, of the Code of Civil Procedure, is in the objective case, and is governed by the preposition \u201c to,\u201d in the first line of the section; therefore the words \u201c but such actions \u201d must be supplied in each paragraph immediately preceding the verb \u201c shall be governed,\u201d in the fifth line of the former, and the fourth line of the latter paragraph.\n.Actions commenced after the adoption of the Code upon contracts not embraced in the Stay Law Ordinance, must be brought before the Clerk.\ni{Teague v. James, ante 91, and Gaither v. Gilson, ante, 93 cited and approved.)\nAttachment, dismissed upon motion before Logan, J., at Eall term 1868, of the Superior Court of Mecelenbueg.\nThe proceeding was by summons (and warrant of attachment) returnable to Eall term 1868 of the Superior Court, upon a bond dated October 11th, 1865. The plaintiff having \u25a0filed his complaint, the defendant answered and demurred. No part of the proceedings are material to be stated excepting the demurrer, which alleged that as the cause of action was a contract made on the 11th of October, 1865, the Code of Civil Procedure did not apply.\nHis Honor having thereupon ordered the attachment to be \u25a0discharged, the plaintiff appealed.\nDowd, for the appellant.\nWilson, contra."
  },
  "file_name": "0095-01",
  "first_page_order": 111,
  "last_page_order": 114
}