{ "id": 8683872, "name": "JOHN H. WHEELER v. C. L COBB and K. R. COBB", "name_abbreviation": "Wheeler v. Cobb", "decision_date": "1876-06", "docket_number": "", "first_page": "21", "last_page": "27", "citations": [ { "type": "official", "cite": "75 N.C. 21" } ], "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": "9 Ired. 99", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8685716 ], "opinion_index": -1, "case_paths": [ "/nc/31/0099-01" ] }, { "cite": "14 Pet., 293", "category": "reporters:scotus_early", "reporter": "Pet.", "case_ids": [ 3334765 ], "opinion_index": 0, "case_paths": [ "/us/39/0293-01" ] }, { "cite": "14 Pet., 172", "category": "reporters:scotus_early", "reporter": "Pet.", "case_ids": [ 3334798 ], "opinion_index": 0, "case_paths": [ "/us/39/0172-01" ] }, { "cite": "71 N. C., 210", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "9 Ired. 99", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8685716 ], "opinion_index": 0, "case_paths": [ "/nc/31/0099-01" ] } ], "analysis": { "cardinality": 584, "char_count": 11777, "ocr_confidence": 0.469, "pagerank": { "raw": 1.3385363377921566e-06, "percentile": 0.9899055890903292 }, "sha256": "dc29b15b5c61614514c3232aa824a50073055574382fb6d2646774bb1d893958", "simhash": "1:cbb080bdab2ebfcb", "word_count": 2016 }, "last_updated": "2023-07-14T18:17:21.962704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN H. WHEELER v. C. L COBB and K. R. COBB." ], "opinions": [ { "text": "Bynum, J.\nThe service of summons by publication, is fatally defective, in that it does not conform to the requirements of the statute. The foundation and first step of service by publication, is an affidavit that \u201c the person on whom the summons is to be served, cannot, after due diligence, be found within the State.\u201d Bat. Rev., chap. 17, sec. 83. This requirement was omitted in the affidavit, why, it is hard to conceive, as it was made by the attorney himself, who, as a prudent practitioner, should have had the statute before him in drafting the affidavit. For this Court had repeatedly held, that the provisions of this statute must be strictly followed. Spier v. Halstead, 71 N. C., 210. Everything neces-saty to dispense with personal service of the summons, must appear by affidavit. The mere issuing of a summons to the Sheriff of the County of Pasquotank and his endorsement upon it, the same day, and perhaps the next moment after it came to hand, that \u201c the defendant is not found in my county,\u201d is no compliance whatever with the law; for it might wTell be that the defendant was at that time in some other county in the State, and that the plaintiff knew it, or by due diligence could have known it, and made upon the defendant a personal service of the summons. Every principle of law requires that this personal service should be made, if compatible with reasonable diligence.\nBut the ease states that \u201c the docket shows that at the re* turn term of the Court, J. P. Whedbee\u2019s name is entered as attorney'for the defendants,\u201d and at the same term this en-entry was made upon the docket: \u201cDefendants allowed until the first of December to file pleadings \u2014 order mutual to take depositions upon ten days\u2019 notice.\u201d There being nothing in this appearance by attorney, qualifying it, the only reasonable construction is, that it was a general appearance; that is for all purposes. A general appearance to an action, cures all antecedent irregularity in the process, and places the defendant upon the same ground as if he had been personally served with process. Pollard v. Dwight, 4 Cr. 421. Taylor v. Longworth, 14 Pet., 172, 14 Pet., 293. It was, therefore, too late, at a subsequent term of the Court, to raise the objection to the regularity of the service. The Court will the more readily give this effect to an appearance entered without qualification, because such objections, raised by the defendant himself, who appears in Court to make them, are generally for delay, and to avoid an answer to the merits of the action.\nThe defendant being thus regularly in Court, it was competent for him to show that the attachment was void, and. to move to vacate it. His ground is, that he was a resident of the State, and, therefore, in his case, no attachment lay.\nIn Horne v. Horne, 9 Ired., 99, and Abrams v. Pender, Busb., 260, a distinction is taken between domicil and residence. To acquire a new domicil there must be, not only residence but the animus manendi; but one may be a non-resident, without losing bis domicil or rights of citizensnip, in the State of his origin, or gaining a domicil in another. The facts of our case are, that the defendant had accepted an office of indefinite tenure, under the government of the United States, and had been assigned to duty in the States of Louisiana and Texas, and that the proper discharge of these duties required his residence there for an indefinite and undefined time.\nNow, although the defendant may have continued to claim the rights and privileges of citizenship in the State of North Carolina; never voted or claimed the right to vote out of the State, and occasionally visited the State ; yet all this is consistent with his having a domicil in North Carolina and a residence elsewhere.\nIn Abrams v. Pender, bef\u00f3se cited, A. enlisted in thearmy during the war with Mexico, and during his absence B. sued out an attachment against his property. The question now presented was raised in that case but not decided, because the case went off on the ground that the statute then in force required that the removal of the defendant should have been fraudulent or with intent to evade process, before an attachment lay. Not so now. An attachment is now made a provisional remedy in the progress of a cause, and-ean be sued out, whenever the defendant is a non-resident, regardless of intent. Bat. Rev., chap. 17, sec. 197. Without deciding who, in law, is a non-resident in other respects, but confining the decision to a construction of this statute, the conclusion is that where one voluntarily removes from this to another State, for the purpose of discharging the duties of an office of indefinite duration, which require his continued presence there for an unlimited time, such an one is a non-resident of this State for the purposes of an attachment, and that notwithstanding he may occasionally visit this State, and may have the intent to return at some uncertain future time.\nHis Honor in the Court below decided the question of non-residence, as one of fact, whereas it is one of law and fact. The facts as found constitute the defendant a nonresident under the statute. The affidavit for the attachment complies with the requirements of the Act, Bat. Rev. chap. 17, sec. 201,2, and is therefore sufficient.\nThere is error. The judgment is reversed and the case remanded, that the defendant may have leave to answer, and' that further proceeding\u2019s may be had according to the course of the Court.\nPer Curiam. \u2022 Judgment reversed.", "type": "majority", "author": "Bynum, J." } ], "attorneys": [ "Gilliam & Pruden, for appellant.", "No counsel contra in this Court." ], "corrections": "", "head_matter": "JOHN H. WHEELER v. C. L COBB and K. R. COBB.\nWliere service -of summons is made by publication, the requirements of the statute, Bat. Rev. chap. 17,, sec. 83, snust. be strictly complied with; and the affidavit so required, will he fatally defective, in the absence of an allegation that .the person on whom the summons is to be served, cannot, after due diligence, be found within the State. Everything necessary to dispense with personal service must appear by affidavit.\nBut if the .defendant enters a general appearance \u00a1to-the-action, all antecedent irregularity -of process is cured, and places the defendant on the same ground as if he had been personally served with process.\nWhere one voluntarily removes from this to another State, for the purpose of discharging the duties \u00a9f an. 'Office of indefinite duration, which re'quires his continued presence there for an unlimited time, such person is ,-a non-resident of -this State for the purposes of an attachment, notwithstanding he may visit \u00abthis State, and have the intent to return at some time in the future.\n:(Spiers v. Balitead, 71 N. C. Rep. 21ft; Horne v. Berne, 9 Ired. 99; Abrame v. Pender, Bush. 260, cited and approved..)\nCivil ActioN, \u00a1on a money demand, commenced by summons, and tried before Eure, J.,.atthe February Term, 1876, \u2022of Pasquotank Superior Court.\nThe summons in this case was issued against both defendants on the 9th day of June, 1875; .and on the same day, proceedings were had before the Cleric of the Court, in respect to issuing an .attachment against the defendant, K. E. !Cobb, founded on the following affidavit!\n\u201c Wm. F. .M. Eringhaus, Atto. for J. H. Wheeler, the plaintiff above -named, being \u00a1duly sworn, deposes .and says::\n1st. That the defendant, X. E. -Cobb, -is indebted to the plaintiff in the sum of eleven hundred and ninety-seven -dollars and forty-eight cents ($1,197.48,) due as acceptor of a \u2022draft, drawn by C. L. Cobb, dated Washington, JD. C., 10th of March, 1875, payable sixty days after date, for eleven .hundred .and .ninetyTseven dollars and forty-eight cents ($1,197.48,) to the order of John H. Wheeler, which draft was endorsed by said Wheeler and afterwards paid by him.\n2nd. That the said defendant is a non-resident of the State-of North Carolina, and has property within the State.\u201d\nUpon the foregoing affidavit, an ordesr of publication was-issued,, and publication made ; also a ivarrant of attachment issued, and on the 9th June, 1875; the Sheriff levied the same-on certain real estate.\nOil the hearing, a motion was made to dismiss- the action as to K. R. Cobb, his attorney appearing for the purpose of demurring to the complaint. The docket shows,-that at the return term of the Court,. J. P. Whedbee\u2019s name is entered as attorney for the defendants- ;\u25a0 and at the same term, this entry was made upon the docket :\u25a0 \u201c Defendants allowed until the 1st of December to file pleadings; order mutual, to take-depositions, at ten days\u2019 notice.\nUpon the hearing the motion to dismiss the action, by-consent of counsel on both sides, his Honor heard testimony as to the residence of the defendant, K. R. Cobb, at the time of issui\u00fag the summons and attachment and- before and since that time. And from this testimony, the Court found as facts, that on- the 9th of June and continually thereafter, and. up-to the-trial, K. R. Cobb is and has been a resident of the State of North Carolina.\nThe testimony on the question of residence, was heard at. the bar, from witnesses sworn, to which the p-laintiif excepted, because it should be heard only-in- the-shape'of affidavit.\n0n the question of the residence of the defendant, K. R. Cobb,, the plaintiff\u2019s counsel offered to. read a letter received by him, written by the-plain-tiff touching the matter, which the Court declined to hear as evidence of facts stated in said-letter. Plaintiff excepted.\nThe Court finds further, that there was no affidavit filed for publication of summons, nor any other paper filed \u00a9r. affidavit made than the copies accompanying the statement of the case.\nUpon further question of evidence, the defendant, K. R. Cobb, was permitted by the Court to testify, after exception, that he was a resident of Pasquotank County, North Carolina, where he was raised and his mother\u2019s family still reside ; that when he was appointed Supervisor of Internal Revenue by the proper department of the United States Government, and assigned to duty in the States of Louisiana and Texas, he claimed his home in said County and State, exercising the privilege of citizenship therein, and spent.-' what time he could spare from his official duties in said County and State, and never voted, hoi4 claimed the right to do so elsewhere.\nThe counsel for the plaintiff then asked the Court for leave to put in an affidavit for publication, of summons, and for leave to amend in the other matters, of which defendants complained. The Court refused this application for the reason that in the opinion of the Court, that many of the objections were not only as to form but also as to substance, and the Court had no power to amend in matters of substance.\nPlaintiff then demanded judgment against the defendants for want of an answer, for the amount demanded in the complaint, for the following reasons:\n(1.) That the affidavit of the publication of the newspaper in which the summons wras ordered, with the affidavit of the deposit in the post office of a copy of the summons, showed that service Was made, Without aiiy affidavit by the plaintiff as to the publication of the summons.\n(2.) That the defendants appeared at the last term of the Court, August, 1875, by counsel; that, that appearance was to the action, and not as claimed by Counsel for K. R. Cobb, only to take objections to defects in the papers ; and if there were defects of service, objections should have been theii taken. The Court refused to give the plaintiff the judgment asked for.\nThe plaintiff then asked to be permitted to issue an alias summons for defendants. This was also refused by the Court; and it was adjudged that the action as to K. R. Cobb be dismissed, and th\u00e1t the plaintiff pay the costs. From this judgment, the plaintiff appealed.\nGilliam & Pruden, for appellant.\nNo counsel contra in this Court." }, "file_name": "0021-01", "first_page_order": 29, "last_page_order": 35 }