Pettigrew v. . McCoin
Supreme Court of North Carolina
Appeal by defendant from Devin, J., at, September Term, 1913, of DiÍRI-iam. This is an appeal from tbe refusal of a motion to dismiss tbe present action, upon tbe ground of the pendency of another action in Yance County, beard upon tbe following facts: “Tbe defendant in this action caused a summons to be issued against tbe plaintiff here from tbe Superior Court of Yance County, on 5 March, 1913, entitled R. S. McCoin v. W. J. Petti-grew and tbe American Bonding Company of…
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Appeal by defendant from Devin, J., at, September Term, 1913, of DiÍRI-iam. This is an appeal from tbe refusal of a motion to dismiss tbe present action, upon tbe ground of the pendency of another action in Yance County, beard upon tbe following facts: “Tbe defendant in this action caused a summons to be issued against tbe plaintiff here from tbe Superior Court of Yance County, on 5 March, 1913, entitled R. S. McCoin v. W. J. Petti-grew and tbe American Bonding Company of Baltimore, Maryland, which was immediately sent by mail to tbe sheriff of Dur-bam County for service. It was in tbe office…
1Dissent
Clare:, O. J.,
dissenting: Under Eev., 429, a civil action is ■ “commenced” by issuing the summons. But it is “pending” only from service of the summons or acceptance thereof. Eev., 445, provides: “From the time of service of the summons in a civil action or the allowance of a provisional remedy, the court is deemed to have acquired, and to have control of all subsequent proceedings.” It would seem clear that until the court has thus acquired jurisdiction, the cause is not “pending” in said court. It is merely “commenced” by the issuing of the summons. ■
This is clearly held in Simmons v.…
2Cases cited21 opinions
- Commonwealth v. ChurchillMassachusetts Supreme Judicial Court · 1809
- Baker v. . CordonSupreme Court of North Carolina · 1882
- McMahan v. HubbardSupreme Court of Missouri · 1909
- Perkins v. PerkinsSupreme Court of Connecticut · 1829
- Downer v. GarlandSupreme Court of Vermont · 1849
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