Wheeler v. . Cobb
Supreme Court of North Carolina
Civil ActioN, ¡on a money demand, commenced by summons, and tried before Eure, J.,.atthe February Term, 1876, •of Pasquotank Superior Court. The summons in this case was issued against both defendants on the 9th day of June, 1875; .and on the same day, proceedings were had before the Cleric of the Court, in respect to issuing an .attachment against the defendant, K. E. !Cobb, founded on the following affidavit! “ Wm. F. .M.
Read the full summary
Civil ActioN, ¡on a money demand, commenced by summons, and tried before Eure, J.,.atthe February Term, 1876, •of Pasquotank Superior Court. The summons in this case was issued against both defendants on the 9th day of June, 1875; .and on the same day, proceedings were had before the Cleric of the Court, in respect to issuing an .attachment against the defendant, K. E. !Cobb, founded on the following affidavit! “ Wm. F. .M. Eringhaus, Atto. for J. H. Wheeler, the plaintiff above -named, being ¡duly sworn, deposes .and says:: 1st. That the defendant, X. E. -Cobb, -is indebted to the plaintiff…
1Opinion of the CourtBynum, J.
The service of summons by publication, is fatally defective, in that it does not conform to the requirements of the statute. The foundation and first step of service by publication, is an affidavit that “ the person on whom the summons is to be served, cannot, after due diligence, be found within the State.” Bat. Rev., chap. 17, sec. 83. This requirement was omitted in the affidavit, why, it is hard to conceive, as it was made by the attorney himself, who, as a prudent practitioner, should have had the statute before him in drafting the affidavit. For this Court had repeatedly held, that the…
2Cases cited3 opinions
- Taylor v. LongworthSupreme Court of the United States · 1840
- Irvine Ex Rel. Lumberman's Bank at Warren v. LowrySupreme Court of the United States · 1840
- Spiers v. Halstead, Haines & Co.Supreme Court of North Carolina · 1874
3Cited by44 opinions
- Roberts v. . AllmanSupreme Court of North Carolina · 1890
- Baker v. VarserSupreme Court of North Carolina · 1954
- State Ex Rel. Caldwell v. WilsonSupreme Court of North Carolina · 1897
- Board of Com'rs of Roxboro v. BumpassSupreme Court of North Carolina · 1951
- Etheridge v. . WoodleySupreme Court of North Carolina · 1880
39 more not listed; retrieve them via the Exa API.