The summons against the defendant corporations was dated 12 December, 1930.
C. S., 483, in part, is as follows: “The summons shall be served by delivering a copy thereof in the following cases: (1) If the action is against a corporation, to the president or other bead of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof. Any person receiving or collecting money in this State for a corporation of this or any other State or government is a local agent for tbe purpose of this section,” etc. This requirement as to the mode of service on corporations must be strictly observed. Hatch v. R. R., 183 N. C., 617.
Tbe court below (and there are facts to sustain same) found: “Tbe court being of tbe opinion and finding that tbe facts as set out in tbe motion and tbe accompanying affidavits are true and constitute excusable neglect; It is thereupon ordered that said motion to set aside judgment by default and inquiry be and it is hereby granted and allowed, and said defendant, Atlantic and Yadkin Railway Company, is hereby allowed to file its answer at tbis term of tbe court.”
*186E. B. YanSant was tbe local agent of botb defendants. His affidavit is as follows: “That about 10 :30 o’clock on tbe nigbt of' 22 December, 1930, during a mild snowstorm, A. R. Rives, sheriff of Lee County, called at deponent’s residence in tbe town of Sanford, at which time deponent was partially undressed preparatory to retiring for tbe nigbt; that said A. R. Rives, with whom deponent is well acquainted and on friendly relations, told deponent that be bad a paper to serve on him for tbe ‘Coast Line’; that said Rives then banded deponent one set of papers containing a summons and a complaint in tbe above entitled cause. No mention was made by said Rives of tbe Atlantic and Yadkin Railway Company, and, since only one set of papers was banded to deponent, be understood that service was being made upon him solely for tbe Atlantic Coast Line Railroad Company, and that, if service was to be made upon tbe Atlantic and Yadkin Railway Company, it would be made upon some other agent. Deponent noted upon tbe papers tbe time at which they were served upon him and tbe following morning mailed them to officials of tbe Atlantic Coast Line Railroad Company.”
A. R. Rives, tbe sheriff of tbe county, testified, in part: “I left only one copy of tbe summons and complaint with Mr. YanSant, and have no recollection of telling him for which company it was intended. It was snowing slightly that nigbt when we arrived at Mr. YanSant’s bouse.”
There is other evidence of excusable neglect not necessary to be set out.
C. S., 600, in part, is as follows: “Tbe judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding taken against him through bis mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding,” etc.
The plaintiff omitted to prepare a copy of the summons and instruct the sheriff to deliver same to the agent of the Atlantic and Yadkin Railroad Company, a corporation (as required by the statute) as was done for the Atlantic Coast Line Railroad Company. This omission was a primary cause of the agent’s not knowing of the action being brought against the Atlantic and Yadkin Railroad Company, and naturally threw him off bis guard. The statute requiring a delivery of a copy of the summons must be strictly observed — it was no doubt passed to prevent the very thing that took place in this transaction. We think, on the facts as found by the court below, there was excusable neglect on the part of the Atlantic and Yadkin Railroad Company. Tbe evidence in the record — found to be true — was to the effect that the Atlantic and Yadkin Railroad Company bad a meritorious defense. For the reasons given, the judgment of the court below is
Affirmed.