(Decided 5 May, 1899.)
Service of Summons — Judgment by Default — Motion to Set Aside.
1. The Code, sec. 214, requires service of summons to be made by reading the same to the defendant. He, however, may waive the reading.
2. The fact that defendant supposed and believed that the action was against him as administrator, and not individually, is not such excusable neglect as entitles him to relief.
3. What constitutes service of process, and whether upon a given state of facts service has been duly made, is a question for the court. The return of the sheriff is prima facie service, subject to be overcome by proof of the facts.
MOTION to vacate a judgment rendered against defendant, (586) individually, at March Term, 1898, heard upon affidavits before Starbuck, J., at March Term, 1899, of BUNCOMBE.
The motion was allowed, and plaintiff appealed.
Davidson Jones, J. W. Summers, and George A. Shuford for (588) plaintiff.
Merrimon Merrimon and Carter Weaver for defendant.
The summons in this case was issued against W.J. Coke, administrator of W. M. Coke, Jr., and W. J. Coke, individually. The deputy sheriff returned the summons, with this endorsement: "Served, 16 February, 1898, by reading the within summons to W. J. Coke, individually." The defendant did not answer or appear in court, and, for want of an answer, a judgment was entered. On notice and motion of defendant, the said judgment was set aside, and the plaintiff appealed.
His Honor, after hearing affidavits, found as facts: "That at some time the defendant was accosted by said Greenwood (deputy sheriff), on West Courthouse square, in Asheville, and near the entrance to the office of Dr. C.V. Reynolds, and told by said Greenwood that he had a summons for him. The defendant was ascending the stairway which leads to the office of Dr. Reynolds, and looked back and upon a paper in the hands of said Greenwood saw the name of W.B. Williamson, trustee (the plaintiff), and said, `Well, I know all about that," and turned immediately and walked up the stairway, and saw no more of said Greenwood"; that he believed at the time that the summons was against him as administrator of W.M. Coke, Jr., and had no idea that he had been sued individually, and that the deputy did not so inform him by reading the summons or otherwise.
Do these facts, found by his Honor, constitute cause for setting aside the judgment by default? The judgment was regularly entered on a duly verified complaint. The Code, sec. 214, requires the summons to be served by reading the same to the party named as defendant. The return of the sheriff is prima facie service, subject to be overcome by proof of the facts. Miller v. Powers, 117 N.C. 218; Strayhorn v. Blalock, 92 N.C. 292. When the sheriff informed defendant that he had a summons for him, and defendant looked at it enough to see the name of the plaintiff, trustee, and said, "Well, I know all about that," and immediately departed from the sheriff, it is clear that he elected to waive his right to have the summons read to him by the officer, as he had a right to do. It was then defendant's duty to attend (590) court and see the nature of the allegations in the complaint, and defend, if necessary in his opinion. The performance of that duty would have furnished all proper information, and this case, on the matter now presented, would not be here. The failure to attend to that duty was negligence. Such negligence frequently occurs by inattention by suitors in court. This negligence cannot be held a sufficient ground for setting aside a regular judgment, entered up in a consequence of inattention on the part of defendant to an important duty. The courts must proceed with business in a reasonable way, or forfeit their usefulness to the public. The fact that defendant supposed and believed that the action was against him as administrator, and not individually, is not such excusable neglect as entitles him to relief. He would have known otherwise by simply discharging his own duty. White v. Snow, 71 N.C. 232.
What constitutes service of process, and whether upon a given state of facts service has been duly made, is a question for the court.
We hold, upon the case before us, that the court's conclusion was a misapprehension of the law.
Cited: Morris v. McLaughlin, 131 N.C. 214; Hardware Co. v. Buhmann, 159 N.C. 513; Comrs. v. Spencer, 174 N.C. 37; Jerningan v. Jernigan, 179 N.C. 240.