#### CHRISTOPHER W. RYAN v. R. O. BATDORF.

(Filed 23 May, 1945.)

1. Process § 1—

The sole purpose of a summons is to bring a party into court and to notify him that a complaint has been or will be filed against him.

2. Process §§ 2, 12—

An *alias*or *pluries*summons, improperly issued as such, may still be sufficient as an original summons. But when it is desired that the action shall date from the issuance of the original summons, or when it is necessary for it to do so, in order to toll the statute of limitations, the successive writs must show their relation to the original process.

3. Process § 12—

While an original summons cannot be changed into an *alias*summons by merely endorsing the word *“alias”*thereon, such process, however, can be converted into an *alias*by a memorandum or order, endorsed or subscribed thereon, specifying the date of the original writ.

Appeal by defendant from *Stevens, J.,*at October Term, 1944, of New HaNovee.

Summons issued 28 March, 1944, returned with the following endorsement thereon: “After due and diligent search R. 0. Batdorf is not to be found in New Hanover County. This 7th day of April, 1944. C. David Jones, Sheriff — By Sam Yopp, Deputy.”

Complaint was filed at the time the original process was. issued.

*229On 12 April, 1944, plaintiff requested tbe issuance of an *alias*summons, and tbe clerk of tbe Superior Court of New Hanover County entered tbe following order: “It appearing to tbe Court that summons was issued to tbe Sheriff of New Hanover County on tbe 28tb day of March, 1944, for service on tbe defendant, R. 0. Batdorf, and has been returned as follows: ‘After due and diligent search R. 0. Batdorf is not. to be found in New Hanover County. This 7 April, 1944,’ and it now appearing to tbe Court that tbe defendant is now to be found in New Hanover County. It is therefore Ordered that Alias Summons be issued to tbe said Sheriff of New Hanover County for service on tbe said defendant. Witness my band and seal of office, this 12th day of April, 1944. A. L. Meyland, Clerk Superior Court.”

Whereupon tbe clerk marked an ordinary summons “Alias Summons” and wrote tbe above order on tbe face of tbe *alias*summons in tbe upper right-band corner thereof. Tbe *alias*summons was served on tbe defendant 14 April, 1944, by leaving copies of tbe *alias*summons and complaint with tbe defendant.

Tbe defendant, through bis counsel, entered a special appearance before tbe clerk of tbe Superior Court of New Hanover County, on 9 May, 1944, and moved to dismiss tbe action on tbe ground that tbe purported process was invalid as an *alias*summons, and subject to dismissal as an original process, because no cost bond or complaint bad been filed as of tbe date of its issuance.

Tbe motion was overruled, and tbe defendant appealed to tbe judge of tbe Superior Court. Tbe ruling of tbe clerk of tbe Superior Court was sustained by tbe judge on 17 October, 1944.

Defendant appeals to the Supreme Court, assigning error.

*E. L. Yow and Rountree & Rountree for plaintiff.*

*Isaac G. Wright for defendant.*

Denny, J.

It has been held by this Court that “Tbe character of a process purporting to be original is not changed by an endorsement of tbe word *‘alias.’ Mintz v. Frink,*217 N. C., 101, 6 S. E. (2d), 802. Tbe character of tbe process purporting to be original may be changed, however, when tbe process is made referable to tbe original writ, and sued out as required by G. S., 1-95. It is said in *Hatch v. R. R.,*183 N. C., 617, 112 S. E., 529, quoting from Chitty’s Practice: ‘If it be necessary to continue tbe first writ of summons, then an *alias*or *pluries*may be issued into tbe same or another county; and it is very essential to take care that tbe first writ, whether of summons or capias, be in due time returned *non est inventus,*and that every continued process to save tbe *230statute of limitations must have a memorandum endorsed or subscribed, specifying the date of the first writ.’ Ohitty’s Practice, 408; 3 Bl., 280, *et seq.;*Tidd’s Practice, 111; Elliott’s Gen. Practice, 459; 20 Ency. P. & P., 1178; 32 Cyc., 445; 21 R. C. L., 1266.”

While an original summons cannot be changed into an *alias*summons by merely endorsing the word *"alias”*thereon, such process, however, can be converted into an *alias*by a memorandum or order endorsed or subscribed thereon specifying the date of the original writ. The sole purpose of a summons is to bring a party into court and to notify him that a complaint has been or will be filed against him. *Battle v. Baird,*118 N. C., 854, 24 S. E., 668. An *alias*or *pluries*summons, improperly issued as such, may still be sufficient as an original summons. *Neely v. Minus,*196 N. C., 345, 145 S. E., 771. But when it is desired that the action shall date from the date of the issuance of the original summons, or when it is necessary for it to do so, in order to toll the statute of limitations, the successive writs must show their relation to the original process.

The information contained on the face of the summons in the instant case made it referable to the original writ as required by our decisions, and it is, therefore, a valid *alias. Hatch v. R. R., supra.*

The judgment of the court below is

Affirmed.