#### W. P. MOORE vs. THE N. C. RAILROAD COMPANY.

The Clerk of the Superior Court of one County has no right to issue a summons returnable to the Superior Court of another County; hut irregularity of service is waived by an appearance and answer in bar.

[¡¡Towerton v. Tate, 6Q N. C. R. 431.]

Motion to dimiss a civil suit, heard before'Logan, J., at the Superior Court of Cabarrus, Spring Term, 1872.

The plaintiff sued out a summons from the Clerk of the Superior Court of Mecklenburg County, against the defendant, returnable to Spring Term, 1870, of Cabarrus Superior Court. The summons was returnedexecuted.” Plaintiff filed a complaint at the appearance term, and at the same term the defendant answered in bar of the action. At Spring Term, 1872, a motion to dismiss was made by the defendant’s counsel, upon the ground that the clerk of Mecklenburg had no power to issue a summons returnable to Cabarrus Superior Court. It was agreed that plaintiff lived in Craven, and that defendant was a corporation, extending through and doing business in the Counties of Mecklenburg and Cabarrus. His Honor allowed the motion and dismissed the suit. Prom which judgment plaintiff appealed to the Supreme Court.

*210 J. B. Brown and Wilson, for plaintiff.

O. Dowd and Barringer, for defendant,

Rodman* J.

Tire Clerk of the Superior Court of Mecklenburg has no right to issue a summons returnable to tlie Superior Court of Cabarrus. Howerton v. Tate 66 N. C. 431; Acts, 1868-9, ch. 76, sec. 2.

The defendant nevertheless appeared and answered in bar. "We are of opinion that the irregularity was thereby waived. If no summons at all had been issued, the filing of a complaint- and answer would have constituted a cause in Court,

Judgment reversed, and case remanded, to be proceeded in according to law.

Let this opinion he certified,

í’jsr Curiam, Judgment reversed.