dissenting: The judge, by consent, found the facts as follows: “The plaintiff’s intestate-was killed 22 January, 1918. The original summons was issued 13 January, 1919, and on that day the 'sheriff went to the office of the two defendants and informed J. H. Hardin, their local agent, that he had for service a summons against the defendants in favor of the plaintiff, advising him of its contents, and tendered him a copy of the summons for each defendant, which he refused to accept, and told the sheriff that he was not an officer of either of the companies, nor a proper person upon whom to make service, and that J. H. Bridgers, a nonresident, was the president of each company. The sheriff thereupon did not place either copy of the summonses in the possession of Hardin; but he kept them in his own possession and departed. Hardin was not an officer of either company, but at that time was performing the local duties of the president during the latter’s temporary absence. The sheriff, relying on Hardin’s statement, made no effort to serve the president in the county of his residence, but awaited his return to Alamance.”
C. S., 483,i provides that “if the action is against a corporation, the summons shall be served by delivering a copy thereof to the president, or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof.” It has been repeatedly held that the term “local agent” is not limited to those receiving money for the company, Copland v. Tel. Co., 136 N. C., 11, and that service is valid when made upon a general or local agent, Anderson v. Fidelity Co., 114 N. C., 417, and cases there cited, and the definition of “local agent” is fully stated in Whitehurst v. Kerr, 153 N. C., 76; Moore v. Bank, 92 N. C., 590, and other cases cited under C. S., 483 (1).
It is clear, therefore, that the officer, having informed' J. H. Hardin that “he had for service a summons against the defendants in favor of the plaintiff, advised him of the contents, and tendered him a copy of the summons for each defendant” that the defendants cannot profit by the disavowal of their agent, who informed him that he was “not an officer of either company, nor a proper person upon whom to make service,” though, as the judge finds, Hardin made the misstatement in good faith.
*627The bona fieles of the agent in making this statement is not material. He was the proper person on whom to serve the summons; he was informed of the contents of the paper and a copy of the summons for each of the defendants was tendered to him. This was equivalent to service upon the defendant company, which was not more fully complied with by leaving a copy, because the local agent refused to accept the copies tendered to him, and informed the officer, untruly, that service could not be made on him. The defendant certainly should not be allowed to profit by the wrong of its representative in refusing, whether in good faith or not, the copies tendered and in making the misstatement that he was “not a proper person” upon whom the summons could be served.
It would seem, certainly, that the sheriff did all that he could do, unless he had violently thrust the papers upon the local agent, whom he • did inform of the contents of the summons, and who prevented service by refusing to receive the summons and misrepresenting to the sheriff that he was not a proper person upon whom to serve the paper.
Judge Dániels correctly “adjudged that the summons was duly served on the defendants, 13 January, 1919.” The service was complete with the single exception that a copy of the summons was not left with the defendant.
Whether fraudulent evasion of service was intended or not, as a matter of fact, Hardin was a proper person upon whom to serve the summons, its contents were made known to him, copies of the summons were tendered to him, he refused to accept them, and misled the officer by informing him that he was not the proper party upon whom to serve the summons. For the purpose of service of summons, the agent and acting president was the defendant itself, and his act should not be allowed to vitiate such service and deprive the plaintiff of an opportunity to have his wrongs investigated and tried by the action of the very person through whom the law directed the notice of this action should be given.
It is true the sheriff mistakenly returned the summons as not served, but that is immaterial when, as correctly found by the judge, the summons, in fact, was duly served.
It is true that the return by the sheriff of process “not” served is prima facie sufficient, but this can be cured either by appearance or by showing the fact to be otherwise. When a sheriff has been sued for penalty in not serving a process when he has returned it “served,” it has been held that the return can be contradicted and the penalty recovered if such is the fact, and when, as in this case, the sheriff returned it not served when in fact it was, the truth of the facts can be ascertained, and the judge . in this case has adjudged correctly that this summons was served.
*628C. S., 490, provides: “A voluntary appearance of a defendant is equivalent to personal service of tlie summons upon bim,” and under this it bas been beld in 20 cases cited under that section, that “a general appearance waives all defects both, as to summons and service,” Moore v. Packer, 174 N. C., 665, and cases there cited. It is also held: "General appearance cures all defects in service of process,” Drainage District v. Comrs., 174 N. C., 738, and other cases cited under C. S., 401. Under all these cases it is held that however defective the service of. process, or when there has been no process issued at all, the party is as fully in court by a general appearance (which filing an answer is) as if the summons had been properly issued and duly served.
Moreover, appearance in an action dispenses with the necessity of process. Wheeler v. Cobb, 75 N. C., 21, and very numerous cases since then. Among the latest cases being Backley v. Roberts, 147 N. C., 207; Vick v. Flournoy, ibid., 216; Grant v. Grant, 159 N. C., 531, quoting the “learned opinion of Walker, J., in Scott v. Life Association, 137 N. C., 517.” Hatcher v. Faison, 142 N. C., 364; Harris v. Bennett, 160 N. C., 339. Indeed, there are numerous cases that although there has been no summons at all issued, a general appearance, by filing an answer or otherwise, makes service of summons at all unnecessary. Irregularity in service of summons is waived by defendant answering, although he is an infant.; Turner v. Douglas, 72 N. C., 127. Irregularity of summons is waived by appearance and plea in bar; Cherry v. Lilly, 113 N. C., 26. A general appearance, even before a referee, cures all antecedent irregularity; Roberts v. Allman, 106 N. C., 391.
It would indeed be a great hardship when, as the jury finds in this case; the plaintiff’s intestate was killed by the negligence of the defendant, without contributory negligence on his part and assessed the damages at $10,000, the family should nevertheless be barred of recovery because the sheriff, misled by the defendant, erroneously returned the summons “not served” when in fact it had been.
This action was brought upon allegation that the defendants were common carriers, and practically one and the same corporation, doing business in different names, but operated from the same office and having practically the same agents, servants, and owners, and being under the same general management, and that in January, 1918, the plaintiff’s intestate, an employee of these companies and acting under instructions of said companies’ superior officers and agents, and while assisting in the operation of their cars over the same track, was killed by the negligence of the defendants in failing and refusing to furnish plaintiff’s intestate proper and up-to-date cars and appliances in ordinary use at that time; that they were dangerously constructed; and further, that by their negligence in the management of said cars, and in refusing to have *629a sufficient number of bands to operate them; and by reason of the defective manner in which the appliances in use were built, as well as in the failure to have proper appliances, the plaintiff’s intestate was hilled. The details of the negligence are set out in the complaint very fully and completely.
The judge, having found as a fact that the defendants were served with summons on 13 January, 1919, upon J. H. Hardin, the local agent, and acting president of both corporations, he being for the purpose of service of summons the corporations themselves, and that he was informed that the officer had the summons for service upon him and the object of the suit, the refusal to accept the summons tendered him, and the misstatement made by him to the sheriff were the acts of the defendants, and there having been sufficient service within the statutory time, the cause was submitted to the jury. TJpon full evidence of the transaction, the jury found, upon the issues submitted to them, that the plaintiff’s intestate had been killed by reason of the negligence of the defendant, as alleged in the complaint, and that he did not by his own negligence contribute to the injuries which resulted in his death, as alleged in the answer, and assessed the plaintiff’s damages at $10,000.
TJpon this ascertainment of the facts by the jury, it would seem clear that the defendant should not, by reason of the untrue statements of their acting president and local agent to the officer who attempted to serve the process, be released from all liability if there was any technical irregularity in the manner of the service, it having been caused, as the judge finds, by the action of the defendants through their own officer and agent.
The defendants seek to deprive the plaintiff of compensation for the wrongful death, which the jury finds was inflicted on the husband and father of the beneficiaries in this action, upon the technical ground that a copy of the summons was not served upon the defendant companies and they rely upon a single case, Aaron v. Lumber Co.., 112 N. C., 190. But that case differs from the present in two essential particulars: (1) In that case the constable had no copy of the writ and could not have left a copy. In this case, the judge finds as a fact that a “copy of the summons for each of the defendants was tendered” to the acting president and local agent of the defendant, and he refused to receive these copies and misled the officer by telling him that he was not the proper party on whom to leave them. . (2) Again, in Aaron’s cáse, sufra, the defendants entered no appearance, and judgment was taken before a justice of the peace by default. In the present case the court adjudged that “service was duly made on 13 January, 1919,” as a matter of fact and of law, and the defendants took no exception to this ruling of the judge, but filed an answer and amended answer and remained in court two years and a half raising no exception to the finding of the judge *630that there had been sufficient service until the conclusion of the evidence at the trial in September, 1920. Surely the plaintiffs ought not to lose their recovery of compensation for the wrong inflicted by the negligence of the defendants because the defendants’ acting president and local agent refused to accept the copies of the summons which were tendered him for each defendant and by his erroneous statement induced the officer to leave without forcing'the copies of the summons upon him.
The plaintiff in ample time issued their summons, and were in no default, for the court adjudged correctly, and without any exception on the part of the defendants, that “the summons was duly served on the defendants 13 January, 1919.”
Stacy, J., concurs'in dissent.