¶1concurring. I concur in the opinion of the Court as delivered by Justice Cook, upon the express words of the statute. Section 199 of The Code provides that “Civil actions shall be commenced by issuing a summons.” Section 218 simply provides' for service of the summons by publication. It does not pretend to do away with the issuing of the summons, nor does it provide that the publication shall take the place of the summons. There can be no service of the summons unless there is an existing summons’ to be served.
¶2This, I think, clearly appears from section 219, which prescribes how the summons shall be served by publication, and ends with the following provision: “And no publication of the summons, nor mailing of the summons and complaint, shall be deemed necessary.” It does not say that no issuing of the summons shall be necessary, and yet it could just as easily have said so if such had been the intention of the Legislature. I think there is a material difference between
¶3*514this case and Best v. Mortgage Co., 128 N. C., 351. That case holds (2d Syl.) that: “The Code, Section 218, does not require the issuing and return of summons not served as a basis for publication of Summons.” The italics are mine, and emphasize the effective words of the decision. There may be some unguarded expressions in the opinion, but these must be construed with regard to the facts of the case.
¶4dissenting. The appellee not having filed a brief as required by Rule 36 (as amended at this term), we could not permit oral argument by him, and hence were without the benefit of hearing from that side. The rule requiring printed briefs, experience has demonstrated to be an absolute necessity for the careful consideration and despatch of the steadily increasing volume of business in this Court, and must be strictly and impartially adhered to. Notice has long been given that the Court would be forced to adopt such rule, which we believe is in force in the highest Courts of all our sister States.
¶5Fortunately for appellee, however, the only point presented on this appeal has been recently and clearly decided by this Court in an opinion (Best v. Mortgage Co., 128 N. C., 351), which was followed by tire Judge below. It having been made to “appear to the satisfaction of the Court,” by affidavit, that the defendants were non-residents of the State; that a cause of action existed against them, and that after due diligence they could not be found in the State, service was ordered to be made by publication as provided on that ¡state of facts by The Code, Sec. 218. That section does not require that non-residence should be made to appear by issuance to the sheriff, and a return “not to be found in my county”; but requires that it shall appear “by affidavit to the satisfaction of the Court that he can not be found within the State,” which course was followed in this case.
¶6*515It appears from the “Facts Agreed” that this “action was began by publication of summons returnable to April Term, 1899, Mitchell Superior Court,” that “the affidavits for attachment and publication were in due form and sufficient in form under the laws of North Carolina for the purposes for which they were intended, to-wit, to procure an order for the publication of summons and the issuance of attachments.” It further appears in detail by the case agreed, that the attachment of property and publication and affidavits, and every step required in such proceedings were regular from start to the return term, save that the defendants contend that there was no summons issued in said ease, and this is a motion at that term to dismiss the action and dissolve the attachment on that ground.
¶7The authorities and the statute are of course uniform that an attachment is ancillary, and can only be granted when there is an action pending; that is, begun by issuing a summons. Marsh v. Williams, 63 N. C., 371. There was a regular summons in this case, and it was regularly served by publication, instead of by personal service, since the latter could not be had, the defendants being non-residents, and it appearing to the Court “by affidavit to the satisfaction of the Court” (as the statute requires), that “after due diligence defendants could not be found in this State.” Why, then, issue thereafter a summons to_the sheriff ? The statute does not require it, and the precedents say it is not necessary, and nothing could be accomplished by doing so. The summons in such case is “issued” when it is ordered to be published and is sent to the printer to be served, by publication, as truly as when it is handed to the sheriff to be served personally. The “service is by publication,” and that was regularly had, and jurisdiction was obtained by attachment of the property, and that was also regularly had in this case.:
¶8The cases of Houston v. Thornton, 122 N. C., 365; 65 Am. *516St. Rep., 699, and Webster v. Sharpe,, 116 N. C., 466, relied on by defendants', hold merely that as to the statute of limitations the summons is “issued” in cases where there is a personal service, when it leaves the Clerk’s office to be handed to the Sheriff. They do not hold that that is the only mode of “issuance” of summons. On the contrary, when the service is to be by publication, the summons is issued when it leaves the Clerk’s office to be served in that way. In both cases the actual service is later, in publication at the end of the prescribed time, and in personal service when the defendant is found and served by reading the summons to him and leaving him a copy.
¶9In the late case of Best v. Mortgage Co., 128 N. C., 353, this identical point was decided by a unanimous Court after full consideration, and it is said: “The Code, Sec. 218, does not require the issuance and return of summons not served, as a basis of publication of summons. It provides merely ‘where the person on whom service of summons is to be made can not, after due diligence, be found in the State, and that fact appears by affidavit to the satisfaction of the Court,’ etc., then an order for publication of summons may be made.” And it is also said in the same: “As the affidavit then filed sets forth that the defendant was a non-resident, and that fact is not denied, it could have served no purpose to have issued a summons merely to be returned with an endorsement of the fact of non-service by reason of non-residence of defendant.”
¶10The statute requires such fact to be shown “by affidavit to the satisfaction of the Court,” and not by such perfunctory presumption as that the defendant is a non-resident of the State, because the sheriff may return “not to be found in my county,” where there are ninety-six other counties in the State. The statute is more just to the defendant and was' strictly followed in this case.
¶11Our precedent, above cited, is not only recent, by a unani*517mous Court, and directly in point, but it is supported by the rulings in other States, exactly “on all fours.” Bannister v. Carroll 43 Kan., 64; Larimer v. Knoyle, Ibid., 338; Green v. Green, 7 Ind., 113; Wood v. Bissell, 108, Ibid., 229; Mills v. Corbett, 8 How. Pr., 500; Bank v. Richardson, 34 Oregon, 536 ; 75 Am. St. Rep., 664; Goodale v. Coffee, 24 Ibid., 354; Easton v. Childs, 67 Minn., 242; Huffman v. Brung, 83 Ky., 400, and there are many others. In equity, a subpoena was not necessary when non-residence was made to appear by affidavit, and publication was made. Erwin v. Ferguson, 5 Ala., 167.
¶12The law presumes that every man is in possession of his property, either in person or by some agent, and that the actual levy and seizure of the property will give him notice of the attachment or seizure, and the publication of the summons is for the sole purpose of notifying him when and where he may come and defend his property. Cooper v. Reynolds, 77 U. S., 309; Bernhardt v. Brown, 118 N. C., 700; 36 L. R. A., 402.
¶13The defendant further objects that this attachment was not at that time indexed on the judgment docket as required by Chapter 435, Laws 1895. That is not a pertinent objection on this motion, and can only arise on a contest for priority of liens between creditors.