Opinion
(June Term, 1851.)
In a proceeding under our statute to recover damages for overflowing land by a mill-pond, it is not necessary that a copy of the petition should be served on the defendant. It is sufficient for the plaintiff to give the defendant ten days notice, in writing, of his intention to file the petition.
APPEAL from Manly, J., at DAVIDSON Fall Term, 1850.
Petition for damages for overflowing land by a mill-pond. It was filed at May County Court, 1849, which was on the second Monday. On the first day of the month, more than ten days previous to the term, the petitioner gave the defendant notice, in writing, of his intention to file the petition at the next term; and on the 7th day of the month the plaintiff served the defendant with a copy of the petition. At May term the defendant put in an answer setting forth several grounds on which he claimed the right to erect his mill and overflow the plaintiff's land, and denying the plaintiff's right to damages. It further stated the facts as to the serving of the notice and copy of the petition, and insisted that the copy ought not to have been served until after the county court, and that for that reason the petition ought not to be entertained, but dismissed. The county court nevertheless ordered a jury, and damages were assessed and judgment rendered, and the defendant appealed. In the Superior Court the defendant renewed the objection that the suit was not properly constituted, and prayed the court to dismiss it. But the court refused, and after a trial at bar and judgment for the damages assessed, the defendant again appealed.
No counsel for plaintiff. (140)
Mendenhall for defendant.
If the objection were open after a full defense on the merits, it would not avail the defendant, for there is nothing in it. The statute does not provide for or intend that a copy of the petition should be served. The purpose was to give a summary remedy on motion at the same term at which the petition was filed. But to prevent surprise, it requires the notice in writing of the intention to file the petition. That was just the course in the court of chancery before the statute required the master to send a copy of the bill with the subpoena. Before that the plaintiff sued out his subpoena often before his bill was filed; and the defendant being served with the process, brought the bill for himself if he wished one. In respect to petitions of this kind, we believe a practice has grown up of serving a copy of the petition in order to obviate possible objections for omissions in the notice. Though unnecessary, it may thus be convenient to the petitioner to serve the copy. That is at his own expense, and can by no possibility do any wrong to the defendant.
PER CURIAM. Affirmed.
(141)