Wearring v. BELK BROTHERS INC.

248 S.E.2d 90 (1978)

38 N.C. App. 375

Dorothy WEARRING v. BELK BROTHERS, INC.

No. 7726SC955.

Court of Appeals of North Carolina.

October 17, 1978.

Chambers, Stein, Ferguson & Becton, P. A., by Karl Adkins, Charlotte, for plaintiff-appellant.

Golding, Crews, Meekins, Gordon & Gray by E. Fitzgerald Parnell, III, Charlotte, for defendant-appellee.

MITCHELL, Judge.

The plaintiff's sole assignment of error is directed to the trial court's determination that there was insufficient service of process. In support of this assignment, the plaintiff argues that the summons was not fatally defective even though the directory paragraph contained the name of an officer of the defendant corporation instead of the name of the corporation itself since the caption contained the correct name of the defendant corporation.

The purpose of a summons is to give notice to a person to appear at a certain place and time to answer a complaint against him. 83 C.J.S. Summons p. 795. Fundamental fairness requires that a summons should be of sufficient particularity so as to leave no reasonable doubt as to whom it is directed. However, this requirement does not force the courts to overlook the obvious when determining the validity of a summons.

In dealing with this problem, the Supreme Court of North Carolina recently overruled long-standing authority and indicated in Wiles v. Construction Co., 295 N.C. 81, 85, 243 S.E.2d 756, 758 (1978), that: when the name of the defendant is sufficiently stated in the caption of the summons *91 and in the complaint, such that it is clear that the corporation, rather than the officer or agent receiving service, is the entity being sued, the summons, when properly served upon an officer, director or agent specified in N.C.R.Civ.P. 4(j)(6), is adequate to bring the corporate defendant within the trial court's jurisdiction. (Citations omitted)

In the case sub judice, the caption of the summons clearly indicated that the corporation was being sued. In addition, the complaint, which must accompany a summons pursuant to G.S. 1A-1, Rule 4(d), showed that the corporation rather than an individual was being sued. Therefore, there was no insufficiency in the service of process and the court had jurisdiction over the defendant. Wiles v. Construction Co., 295 N.C. 81, 243 S.E.2d 756 (1978); Public Relations, Inc. v. Enterprises, Inc., 36 N.C.App. 673, 245 S.E.2d 782 (1978).

For this reason, the decision of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

VAUGHN and ROBERT M. MARTIN, JJ., concur.