Church v. . Furniss
Supreme Court of North Carolina
Civil action, tried before Jones, J., at Spring Term 1870 of Washington Court. The action bad been commenced by a summons returnable (Nov. 1,1869,) before a Magistrate. Incident to this, was a warrant of attachment, upon an allegation that the defendant bad left the State, &c. The warrant was returnable Nov. 27th. The summons was returned, (“Not to be found,” &c.,) upon the 26th of November.
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Civil action, tried before Jones, J., at Spring Term 1870 of Washington Court. The action bad been commenced by a summons returnable (Nov. 1,1869,) before a Magistrate. Incident to this, was a warrant of attachment, upon an allegation that the defendant bad left the State, &c. The warrant was returnable Nov. 27th. The summons was returned, (“Not to be found,” &c.,) upon the 26th of November. Upon the next day, the plaintiff, upon a suggestion that the advertisement which had been ordered, had, by accident, not been duly made, obtained a continuance of the case for four weeks. On the 25th day…
1Opinion of the Court
Eodmaít, J.
It is said, that, as the summons in this case was not returned on its return day, (1st Nov.,) nor until some twenty-flve days thereafter, the action was discontinued. The doctrine of discontinuance is founded on this principle: If a defendant be summoned to appear on a certain day, and the plaintiff fails to appear on that day, to prosecute his suit, and no future day is fixed by the Court for the appearance of the defendant, he is left without knowledge on that point, and as he cannot be expected to appear every day for an indefinite time, he is held to be discharged from…
2Cited by2 opinions
- Harrison v. . RicksSupreme Court of North Carolina · 1874
- Penniman v. . DanielSupreme Court of North Carolina · 1885