Opinion
(September Term, 1896.)
Practice — Appeal — Case on Appeal — Service.
1. Service of all process and papers in a cause (except when service by publication is authorized) must be by an officer or acceptance of service, except only subpoenas which may be made by one not an officer, provided he is not a party to the action.
2. Hence, under section 550 of The Code, which provides that the case on appeal shall be served on the appellee, without specifying the manner of service, the service must be made by an officer.
3. Where there is no case on appeal in this Court, and no error appears on the record proper, the judgment below will be affirmed.
4. In an action to set aside conveyances alleged to have been procured by fraud and undue influence, a cause of action is stated by the complaint which alleges that the defendant, who had been the former mistress of the grantor, and in order to marry whom he had procured a divorce from his wife, had, "by continued persuasion, by alternate flattery and complaining, by excessive importunity, by threats of abandonment, obtained undue influence over the will of the said Smith, deceased, `the grantor,' and by means of this fraud and undue influence she exerted such a domestic and social force upon the said Smith that he executed the deeds, etc.; and the plaintiffs aver that said deeds were executed by reason of said fraud or undue influence, and not of the free will and consent of said Smith."
ACTION, tried at Fall Term, 1896, of COLUMBUS, before Greene, J., and a jury. There was a judgment for the plaintiffs, and defendants appealed. Upon failure of service of the case on appeal, the defendants moved in this Court for a writ of certiorari to have the case on (315) appeal settled by the judge, which was denied, and thereupon they moved to have their case treated as the proper case on appeal.
J. B. Schulken and MacRae Day for plaintiffs.
John D. Bellamy, Jr., and Shepherd Busbee for defendants.
The purpose of the action was to set aside conveyances of property alleged to have been procured by undue influence. The eighth allegation of the complaint referred to in the opinion of Associate Justice Clark was as follows:
"8. That about the year 1872 or 1873 the said H.C. Smith, deceased, became infatuated with the defendant, M. C. Smith, said defendant being then unmarried, while the said H.C. Smith was a married man; and that the defendant, M. C. Smith, became then and there the mistress or concubine of the said H.C. Smith, he being then about fifty years of age, and she (the defendant) about twenty or twenty-one years of age; that the illicit and adulterous intercourse then begun continued until the defendant M. C. Smith, then bearing the name of Mary Columbia Formyduval, gave birth to an illegitimate child — a son; that thereupon and thereafter the defendant, M. C. Smith, by the influence she had acquired by her wicked acts and pleadings, prevailed upon the said H.C. Smith to procure a divorce from his lawful wedded wife; that the said H.C. Smith, urged on by defendant, M. C. Smith, and blinded by his infatuation for his concubine, the said M. C. Smith, did, by fraud and subornation of witnesses, as plaintiffs are informed and believe, procure a decree of divorce from his said wife, Dorcas Smith; that after said divorce the defendant, M. C. Smith, and H.C. Smith went through a marriage ceremony and lived together as man and wife; that after said marriage, and during said cohabitation, the defendant, M. C. Smith, by continued persuasion, by alternate flattery and complaining, by excessive importunity, by threats of abandonment, obtained undue influence over the will of the said H.C. Smith, deceased, and by means of this fraud or undue influence she exerted such a domestic and social force (316) upon the said H.C. Smith that he executed the deed and the bills of sale above referred to, and the plaintiffs aver that said deed and bills of sale were executed by reason of said fraud or undue influence, and not of the free will and consent of said H.C. Smith."
The application of the appellant, heretofore made for a certiorari to have the case settled by the judge, having been denied, they now move to have their case on appeal treated as the proper case on appeal, although service thereof has not been accepted, nor has it been served by an officer, claiming that placing the statement of the case in the mail in time to reach the appellees was due service. They admit that to do so would be to overrule numerous decisions of this Court, which they ask us to review for that purpose.
The original Code of Civil Procedure, section 80, provided for service of papers in a cause, either personally or by filing in the clerk's office, and C. C. P., sec. 301 (the original of the present section 550), provided for service of the case and countercase on appeal, "in the manner provided by section 80," and the same was true of sec. 349 (now 597) as to serving notices. The inconveniences and manifest evils which arose from thus filing papers which opposite counsel might not see, or might overlook till too late, culminated (after some unpleasant incidents) in a repeal of section 80, and the simple provisions in sections 550 and 597 that the statement of the case on appeal, and all notices, (317) "shall be served" on respondent, etc. Where no other mode of service is provided for, the court held that service must be made by an officer, unless service is accepted, according to section 228 for service of summons. Allen v. Strickland, 100 N.C. 225. That case, it is true, was as to the attempted service of a notice by mail, but the principle applies to all legal papers as to which "service" is prescribed, without indicating any deviation from the ordinary manner of service, and The Code, sec. 597, provides for service of "notices and other papers" in the same manner. Allen v. Strickland has since been followed by Clark v. Manufacturing Company, 110 N.C. 111, and S. v. Johnson, 109 N.C. 852 (as to service of notice of appeal when taken out of court), the court saying: "The requirement of service by an officer is not only statutory but reasonable, as it prevents disputes like this, as to whether there has been service or not"; also in S. v. Price, 110 N.C. 599 (as to the service of the case on appeal), which is followed in Herbin v. Wagoner, 118 N.C. 656; Forte v. Boone, 114 N.C. 176; Cummings v. Hoffman, 113 N.C. 267; McNeill v. R. R., 117 N.C. 642; Roberts v. Partridge, 118 N.C. 355; and there are others. Aside from the construction of the statute being so thoroughly settled, if it were res integra it could not be held otherwise. With the policy of the statute in requiring service, if not accepted, to be made by an officer, we have nothing to do; but it admits of more than a doubt if the substitution of service by counsel or parties, and proved by their oaths, would not lead to the greater evil of counter affidavits as to service being made in time, if at all. The former provision, as to service by filing in the clerk's office was so prolific of evil as to cause its repeal. At present any hardship is averted by acceptance of service, (318) or, if that is refused, service by an officer, which modes avoid the unpleasantness which might otherwise occur more or less frequently to the profession and to the courts of settling such matters upon the controverted affidavits of counsel. Service of all papers, by our statutes (except in cases where service by publication is authorized), must be by an officer, or acceptance of service, except only subpoenas, as to which service may be made by one not an officer, but even then the service must be "by one not a party to the action," and the return sworn to. Code, sec. 597 (4).
The counsel moves, in the absence of a case on appeal, to dismiss the action because the complaint fails to state a cause of action. It is true that this motion can be made in this Court for the first time, Rule 27; but the objection to the complaint is not well taken. Paragraph 8 is sufficient as an allegation of fraud and undue influence.
There being no case on appeal, and no errors appearing upon the face of the record, the judgment is
AFFIRMED.
Cited: Westbrook v. Hicks, 121 N.C. 132; Lowman v. Ballard, 168 N.C. 18.