Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-06-12
COURT DECISIONS.
DIGESTED BY w. B. MARTIN.
EXCLUSIVELY FOR
vlRCiNIAN-PILO
Notes Of Cases Recently Decided,
Which are of Interest to
Our People. X
BAKER ". BRENT.

Supreme Court of North Carolina.
April II, 1900.
THE SERVICE OF A SUMMONS Ry
a TOWN CONSTABLE, WHICH
WAS NOT DIRECTED TO HIM AS
CONSTABLE OF SUCH TOWN Is
a NULLITY. a JUSTICE JSSli-
ING SUCH a DEFECTIVE WAR
RANT CANNOT AMEND IT. AND
OBTAINS NO JURISDICTION UN-
DER IT.
The Court says: The justice of the
peace who issued the summons in this
Gase tlhe acton being for the recovery
OF personal property dcpuliZed John
wan TO execute ana return it. The re-
turn or the summons was signed. ~
a. Wall. D." The letter ''D'' is sup
posed TO stand for Deputy; but
whose deputy Is not stated. nor do ,vr
Know. Inc defendants counsel moved
III IL special appearance for the purpose
10 DISMISS the action on the following
ground: That j. ~ Wall being tho
constable only of an Incorporated town
uilo nor township or general conSta-
p!e. nad no power OF authority to
serve the summons or other process in
Inns acton, for the reason that such
summons and process were not direct
eu 70 him in the namc of the Office he
holuS; that Is as constable of the town
OF Morganton." The case was heard
on its merits by the Justice of the
peace, after he had ovcrruled the mo-
ton of the defendant and in the sumo
rlor court the same motion was made
ana ovcrruled There was n judgment
Tor the plaNtiff. and the defendant an
pealed.
The question presented by the appeal
Is whether the service of the summons
made by wall Is nullty. If so. the
motion Of the defendant to dismiss
the action should have been allowed
and the permission given to the plain
III to amend the summons by having
IL directed To -. n. WALL Marshal Of
the Town of Morganton," ought not to
have been granted. In the DEFENDANTS
motion 10 dismiss the action Wall is
admitted to be the town constable of
Morganton. and that IS the only evil
dence of that fact in the record. IN
der the charter of MOrganton tho
town constable may execute prccepts
Issued to him by the mayor when such
precepts are issued TO him as cons;a-
Bile; but we do not see in the town
charter any civil jurisdiction given to
the mayor except actions upon penal
ties and fines. l'ut the plaintiff insists
that under section $50 OF the Code
Wall. being n town constable. was an-
thorl2cd to serve the summons dlroct ed
to ANY constable or other lawful Off
Ger of Burke county" by virtue Of his
office as constable Of tho town Of Nor
canton. Tha. section OF the Code au-
thor'i2es city and town corstablcs to
serve all civil or criminal process that
may be directed to them by any court
within their respective counties, etc,
and this court held I'm Davis V. Sander
lin that process could not he served by
n constable outside OF his town or city
where the process was directed to
'any constable or other lawful officer
of safd county" and that to enable n
constable Of a city or town TO serve
court process such process must he di-
rccted (addresscd) to him. rs required
by tho Code. not necessarily by name
but officially as the constable of his
city or town. And tho law is the same
if constable undertakes to execute
process within tho limits Of the town
or city. In all cases where cons stables
section $50 Of the code. they can do
so only I'm those cases whore the pro-
cess IS directed (addresscM to Thorn rs
constab'cs Of such city or town. Tho
defendant. then. was not before the
court by proper service OF summons
on him when he made tho motion. In n
special appearance for that purpose.
to dismiss tho action. and -ttrerrforr-tt M.
amendment allowed bv the Justice of
the peace tn the plaintiff to amend the
summons on its face so ne to have 1t Iii
Town or MorCanton." ought not to
have boon allowed Under section a0S
OF tho Code thcrn fs n liberal svsfcrn
provided for tho amendment OF pro-
cess. hut while such amendments can
be made to show jurisdiction. they
cannot be extended to confer jurisdic-
dction,
Reversed.