Middleton v. Duffy
Supreme Court of North Carolina
This was a MotioN to amend the return of a sheriff, heard before Clarke, J., at the Spring Term, 1874-, of the Superior Court of ONSLow county. The following are the substantial facts as they appeared upon the hearing in the Court below, and which are certified to this Court by the Judge presiding, the counsel for the parties litigant being unable to agree upon a statement of the case.
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This was a MotioN to amend the return of a sheriff, heard before Clarke, J., at the Spring Term, 1874-, of the Superior Court of ONSLow county. The following are the substantial facts as they appeared upon the hearing in the Court below, and which are certified to this Court by the Judge presiding, the counsel for the parties litigant being unable to agree upon a statement of the case. The motion was based upon certain affidavits as to the service of the original summons in the case, and upon the summons itself and docket entries made in the progress of the cause. The summons was returnable…
1Opinion of the CourtSettle, J.
The application to set aside proceedings for irregularity should be made as early as possible, or as it is commonly said, in the first instance ; and when there has been any irregularity, if the party overlook it and take subsequent steps in the cause, ho cannot afterwards revert back to the irregularity and object to it. 1 Tidd Pr. 513.
The use of a summons is to bring a party into Court, but if a defendant sees proper to appear without a summons, or upon a defective summons, he thereby waives all irregularity in that respect.
Here, it appears from the record, that the defendants, at the…
Also in this document: Per curiam.
2Cited by7 opinions
- State Ex Rel. Caldwell v. WilsonSupreme Court of North Carolina · 1897
- State v. . JonesSupreme Court of North Carolina · 1883
- A. L. Webb & Sons v. HicksSupreme Court of North Carolina · 1899
- First National Bank of Charlotte v. WilsonSupreme Court of North Carolina · 1879
- Fleming v. . PattersonSupreme Court of North Carolina · 1888
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