Hasty v. Carpenter

252 S.E.2d 274 (1979)

40 N.C. App. 261

Nellie HASTY, Executrix of Martha B. Turner, Deceased v. Nancy Sharon CARPENTER.

No. 7811SC54.

Court of Appeals of North Carolina.

March 6, 1979.

*275 Love & Ward, by Jimmy L. Love and Hoyle & Hoyle, by J. W. Hoyle, Sanford, for plaintiff appellant.

James F. Penny, Jr., Lillington, for defendant appellee.

WEBB, Judge.

The plaintiff chose to commence this action by having the summons issued with an order allowing her twenty days to file the complaint. This is a permitted method under G.S. 1A-1, Rule 3 which provides:

A civil action is commenced by filing a complaint with the court. The clerk shall enter the date of filing on the original complaint, and such entry shall be prima facie evidence of the date of filing. A civil action may also be commenced by the issuance of a summons when (1) A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days and (2) The court makes an order stating the nature and purpose of the action and granting the requested permission. The summons and the court's order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the clerk's order, the action shall abate.

*276 Rule 3 provides the action shall abate if the complaint is not filed within the period specified in the clerk's order. It does not provide that the action shall abate if the complaint is not served on the defendant. We believe Braswell v. Railroad, 233 N.C. 640, 65 S.E.2d 226 (1951) is controlling. That case was decided before G.S. 1-121 was superseded by Rule 3. G.S. 1-121 provided for the commencement of actions by serving a summons without a complaint as the present Rule 3 now provides. The court in that case held that when the complaint is filed within the prescribed time the action is not subject to be dismissed, but a defendant is not compelled to plead until the complaint is served on him, and no default judgment may be had until the complaint is served. We hold that Rule 3 has not overruled Braswell. Although Rule 3 is phrased differently from former G.S. 1-121, the procedure for serving a summons with an order allowing a delay in filing the complaint is very similar under both the rule and the statute. We do not believe the reasoning of Braswell is affected by the adoption of the new rule.

This brings us to the question of the service of the complaint. In light of our decision, it is important in order to fix the time when answer or other responsive pleadings to the complaint must be filed. Lewis Clarke Associates v. Tobler, 32 N.C. App. 435, 232 S.E.2d 458, review denied, 292 N.C. 641, 235 S.E.2d 60 (1977) involves the service of process pursuant to G.S. 1A-1, Rule 4(j)(9)(b). That case held that for service to be complete it is not necessary that there be personal delivery to the addressee, but that the registered or certified mail be delivered to the address of the party to be served and that a person of reasonable age and discretion receive the mail and sign the receipt on behalf of the addressee. A showing on the face of the record of compliance with the statute raises a rebuttable presumption of valid service. In this case it is undisputed that the defendant received a copy of the summons and order allowing an extension of time to file the complaint at a certain address in Georgia. Sixteen days later a copy of the complaint was delivered to the same address, and her husband signed the receipt for it. There is no showing or contention that he is not a person of reasonable age and discretion. Defendant did not deny that the registered mail was delivered to her address. We hold that on this evidence the court was in error in holding the defendant had offered evidence sufficient to rebut the presumption that she had been served with process. We order this case be remanded to the Superior Court of Harnett County for the entry of an order consistent with this opinion.

Reversed and remanded.

MORRIS, C. J., and VAUGHN, J., concur.