Summary
In Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912, 914, it appears a summons was held up by an attorney for the plaintiff pending the execution of a bond during which period the right of action lapsed.
Summary of this case from Louisville N. R. Co. v. LittleOpinion
(February Term, 1895).
Action for Slander — Statute of Limitations — Issue of Summons.
1. A summons is issued when it passes from the hands of the clerk for the purpose of being delivered to the sheriff for service; it is not issued when filled up and signed and held for a prosecution bond to be given.
2. Words spoken to a person or in his presence which, from the rest of the conversation as a whole, amount to a charge of a crime to the apprehension of the person hearing them, are slanderous and defamatory although they do not, in terms, charge the crime.
ACTION for slander, tried before Hoke, J., and a jury, at July Term, 1894, of ALAMANCE.
The court charged the jury that the action was commenced by issuing the summons and the summons was issued whenever it (469) was put out from the clerk's office by direction and under sanction and authority of the clerk and handed to the officer for the purpose of being served; that if it was sent out and handed to some one else to give to the officer for the purpose of being served this would be an issuing of the summons, but it must leave the office for this purpose by the direction or under the sanction or authority of the clerk. (470) Plaintiff excepted.
That the burden of this issue was on the plaintiff to show by the greater weight of evidence that the action was commenced within six months from the last utterance of defamatory words. That if the plaintiff failed in this, or the minds of the jury were left in doubt about the matter so that they were unable to determine it from the evidence, verdict should be for the defendant. Plaintiff excepted.
On first issue court charged the jury that if the words used to Trogden intentionally charged plaintiff with robbing store or the words used to him or in his presence by reasonable intendment and from the rest of his conversation amounted to such charge to the apprehension of Trogden or of any one who heard them, they would be slanderous and defamatory even though they did not make charge in express terms. Plaintiff excepted. There was no exception to any other portion of the charge on statute of limitations, nor to any other portion of the charge except as before noted. There was verdict and judgment for defendant.
E. S. Parker for defendant.
No counsel contra.
This is an action of slander in which plaintiff alleges that defendant falsely charged him with breaking into defendant's store and taking his goods. Defendant answered denying the allegations in plaintiff's complaint, and pleaded the statute of limitations. On the trial three issues were submitted to the jury — one as to whether defendant uttered the slanderous words as alleged, another as to the statute of limitations, and the third as to the amount of damages.
All the evidence tended to show that defendant's store was broken into on the night of 31 December, 1892, and the summons bears date (471) 30 May, 1893. But it was contended by defendant that in fact it was not issued until 10 July, 1893.
If the summons was issued at the time it bears date, it was in time. But if it was not issued until 10 July, it was not in time, and the statute of limitations was a bar.
The presumption is that it issued at the time it bears date, and the burden is on defendant to show that it did not. To do this defendant introduced the clerk and the sheriff, and their testimony tended to show that the summons did not issue at the time it bears date, and that as a matter of fact it was not issued until 10 July, 1893.
An action is commenced by issuing a summons. Code, sec. 199. And an action is commenced when a summons is issued against a defendant. Code, sec. 161. This involves the question as to what is meant by the word "issue," and we are of the opinion that it means going out of the hands of the clerk, expressed or implied, to be delivered to the sheriff for service. If the clerk delivers it to the sheriff to be served, it is then issued; or if the clerk delivers it to the plaintiff, or some one else, to be delivered by him to the sheriff, this is an issue of the summons; or, as is often the case, if the summons is filled out by the attorney of plaintiff, and put in the hands of the sheriff. This is done by the implied consent of the clerk, and in our opinion constitutes an issuance from the time it is placed in the hands of the sheriff for service. But a summons simply filled up and lying in the office of an attorney would not constitute an issuing of the summons, as provided for in The Code. Nor would the fact that a summons was filled up and held by the clerk for a prosecution bond (as the evidence in this case tends to show was the fact) constitute the issuing of a summons, until the bond is given, or at least until it goes out by the consent of the clerk for the (472) purpose of being served on the defendant. This being so, we see no error in the judge's charge on the question as to when the summons issued and the statute of limitations.
The jury finds the first issue for the defendant — that he did not utter the defamatory words as alleged by plaintiff. And plaintiff excepts to the judge's charge on this issue. But no error is pointed out in the exception, and we see none.
Judgment affirmed.
Cited: Currie v. Hawkins, 118 N.C. 600; Houston v. Thornton, 122 N.C. 375; McClure v. Fellows, 131 N.C. 511; Smith v. Lumber Co., 142 N.C. 31; Grocery Co. v. Bag Co., ib., 181; Emry v. Chappell, 148 N.C. 330; McKeithen v. Blue, 149 N.C. 98; McCall v. Sustair, 157 N.C. 183; Carson v. Woodrow, 160 N.C. 146; Cotten v. Fisher's Co., 177 N.C. 60.