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.
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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.