Webb v. SEABOARD AIR LINE RAILROAD COMPANY

151 S.E.2d 19 (1966)

268 N.C. 552

Joan K. WEBB, Administratrix of Isaac N. Sturdivant v. SEABOARD AIR LINE RAILROAD COMPANY, Charley Grimes, George R. Thomas and Nellie C. Thomas.

No. 544.

Supreme Court of North Carolina.

November 23, 1966.

*20 Griffin & Perry, Monroe, for plaintiff.

Smith & Griffin, Monroe, for defendant George R. Thomas.

Richardson & Dawkins, Monroe, and Cansler & Lockhart, Charlotte, for defendant Seaboard Air Line Railroad Co.

PER CURIAM.

G.S. § 1-89 provides, in pertinent part: "Summons must be served by the sheriff to whom it is addressed for service within (20) days after the date of its issue."

G.S. § 1-95 contains the following: "* * * When the defendant in a civil action or a special proceeding is not served with summons within the time allowed for its service, it shall not be necessary to have new process issued. At any time within ninety days after issue of the summons, or after the date of the last prior endorsement, the clerk, upon request of the plaintiff shall endorse upon the original summons an extension of time within which to serve it. * * * As an alternate method of extending the life of a summons in those cases where the defendant in a civil action or special proceeding is not served with summons within twenty days, the plaintiff may sue out an alias or pluries summons, returnable in the same manner as original process. An alias or pluries summons may be sued out at any time within ninety days after the date of issue of the next preceding summons in the chain of summonses."

The record does not reveal that there was any endorsement by the Clerk of Superior Court on the original summons or any issuance of alias or pluries summons pursuant to G.S. § 1-95. The original summons was not served within twenty days of its issue. This summons had lost its vitality and was functus officio when the Sheriff served it. There is no authority in the statute for the service of this summons after the date fixed for its return. Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215.

The plaintiff contends that the paper writing entitled "Summons" issued by him as to both defendants on 18 February 1966 constituted an alias summons or extension *21 of the summons issued on 1 February 1966. We cannot agree with this contention. An alias or pluries summons improperly issued as such may still be sufficient as an original summons. But when it is desired that the action shall date from the date of issuance of the original summons, or when it is necessary for it to do so, in order to toll the statute of limitations, the successive writs must show their relation to the original process. Ryan v. Batdorf, 225 N.C. 228, 34 S.E.2d 81. There is nothing in the paper writing issued on 18 February 1966 to indicate that it was an alias or pluries summons or which related it to the original process.

There was a discontinuance of the action commenced on 1 February 1966 and the plea in bar to the second action was properly allowed.

The judgment dismissing the action is

Affirmed.