Beck v. Voncannon

75 S.E.2d 895 (1953)

237 N.C. 707

BECK et ux. v. VONCANNON et al.

No. 381.

Supreme Court of North Carolina.

May 20, 1953.

*897 D. A. Rendleman, Salisbury, for plaintiffs-appellants.

Nelson Woodson, Salisbury, for defendants-appellees.

*898 JOHNSON, Justice.

The challenged summons was issued by Vera Maie Uzzell, Deputy Clerk, in her own name, instead of in the name of her principal. The crucial question thus presented is: Does this want of proper signature amount to a failure to comply with the requirements of due process so as to make the summons ineffectual to confer jurisdiction and render the whole proceeding void and of no effect, or is the omission a mere nonjurisdictional irregularity, subject to amendment?

Clerks of the Superior Court are authorized by statute to appoint deputies. Chap. 115, Sec. 86, Laws of 1777, now codified in amended form as G.S. § 2-13. See also G. S. §§ 2-14 and 2-15.

These statutes, as interpreted and applied by the decisions of this Court, fix the status of a deputy as the agent or servant of the principal Clerk, rather than as an independent officer of the court. The decisions give emphasis to the idea that the legal power and authority incident to the office of Clerk of the Superior Court is vested in the principal Clerk as the responsible officer of the law, to be exercised by him, either in person or, within the orbit of ministerial powers, by deputy. Therefore, since a deputy's authority is derivative, the general rule is that he is required to do all things in his principal's name, except where statute expressly provides otherwise. G.S. § 47-1. Miller v. Miller, 89 N.C. 402; Sheperd v. Lane, 13 N.C. 148. See also Piland v. Taylor, 113 N.C. 1, 18 S.E. 70.

The statute, G.S. § 1-89, directs that in connection with the commencement of a civil action the summons must be signed by the Clerk. However, our decisions hold that the issuance of summons is not a judicial act which must be performed by the Clerk in person, but rather that it is a ministerial act which may be done in his name by a deputy. Sheperd v. Lane, supra; Jackson v. Buchanan, 89 N.C. 74.

In our Reports numerous decisions may be found dealing with the jurisdictional effect of the absence from summons of the Clerk's signature or name. However, decision here is controlled by the principles explained in these cases: Henderson v. Graham, 84 N.C. 496; Redmond v. Mullenax, 113 N.C. 505, 18 S.E. 708; Hooker v. Forbes, 202 N.C. 364, 162 S.E. 903; North Carolina Joint Stock Land Bank of Durham v. Aycock, 223 N.C. 837, 28 S.E.2d 494; Williams v. Trammell, 230 N.C. 575, 55 S.E.2d 81; Boone v. Sparrow, 235 N.C. 396, 70 S.E.2d 204, 208.

The rule deducible from these decisions, as applicable to the instant case, may be summarized as follows: To confer jurisdiction, the process relied on must in fact issue from the court and show upon its face that it emanated therefrom and was intended to bring the defendant into court to answer the complaint of the plaintiff. And when this is clearly shown by evidence appearing on the face of the summons, ordinarily the writ will be deemed sufficient to meet the requirements of due process and bring the party served into court, and formal defects appearing on the face of the record will be treated as nonjurisdictional irregularities, subject to amendment. "If, however, there is nothing upon the face of the paper which stamps upon it unmistakably an official character, it is not a defective summons but no summons at all * * *." Boone v. Sparrow, supra.

In Henderson v. Graham, supra, the summons was issued without the signature of the Clerk in the blank placed at the end of the instrument. However, the summons bore the seal of the court. After it had been served, the defendant's attorney entered a special appearance and moved to dismiss the action, and the plaintiff's attorney asked leave to amend by allowing the Clerk to affix his signature nunc pro tunc. The court below declined to allow the amendment for want of power and granted the motion to dismiss. On appeal, Chief Justice Smith, in discussing the question whether the want of signature rendered the summons fatally defective and ineffectual to confer jurisdiction, or merely irregular and subject to amendment, announced the principle that any defect or omission of a formal character which would be waived or remedied by a general appearance or an answer upon the merits, may be treated as a matter which can be remedied by amendment. And it was *899 held that the failure of the Clerk to sign the summons was an omission of this description. There the summons, though unsigned, bore the seal of the court. This was the crucial factor on which decision was made to turn. The imprint of the seal furnished internal evidence of the official origin of the summons.

In Hooker v. Forbes, supra, the Clerk by oversight failed to sign the summons. However, the jurat of the Clerk and his signature below the cost bond furnished internal proof of the official character and origin of the summons. It was there held that the defect was nonjurisdictional and amendable.

In North Carolina Joint Stock Land Bank of Durham v. Aycock, supra, summons was transmitted by the Assistant Clerk of the Superior Court of Durham County to the Sheriff of Johnston County and was complete in every respect, including seal of the court, "except that it did not contain the signature of the Clerk or of the Assistant Clerk or anyone in the clerk's office on the blank line at the bottom prepared for such signature * *." The Assistant Clerk signed the summons on the appropriate line after service by the Sheriff. The defendant entered a special appearance and moved to dismiss for alleged want of jurisdiction because of the defect indicated. The lower court denied the defendant's motion to dismiss and allowed the plaintiff's counter motion by entering an order directing that the act of the Assistant Clerk in affixing his signature after service by the Sheriff be approved and ratified. These rulings were affirmed on appeal.

In the instant case it was stipulated by the parties, and so found by the court, that the summons did in fact emanate from the Clerk's office and that it was duly served on the defendants as indicated by the Sheriff's return. It was also stipulated that Vera Maie Uzzell, who signed the summons, was a Deputy Clerk of the Superior Court of Rowan County at the time the summons was issued.

Therefore, under application of the controlling principles of law it is manifest that the summons was not void. Rather, it clearly appears that the summons was sufficient to confer jurisdiction and bring the defendants into court.

Accordingly, we hold that the failure of the Deputy to sign the name of her principal was a non jurisdictional irregularity. And it is noted that the plaintiffs failed to show prejudice entitling them to relief on the ground of such irregularity. They neither alleged nor sought relief based on prejudice arising out of nonjurisdictional irregularity of the summons. The single theory of the plaintiffs' attack on the summons is that it was and is fatally defective and utterly void.

The procedural irregularities alleged by the plaintiffs relate to other phases of the foreclosure proceeding. These we now treat.

1. The plaintiffs point to the fact that the judgment of foreclosure directed the commissioner to sell, not only the vacant lots in controversy, but also the plaintiffs' house and lot; and that the commissioner exposed to sale and the purchasers bid off for the composite bid of $110 both the house and lot and the vacant lots. Here the irregularity complained of is that the judgment of confirmation and the commissioner's deed omitted the house and lot. Thus the plaintiffs contend there is a fatal variance between the sale as made and as confirmed. The contention is untenable. The house and lot were omitted after petition filed in the cause by the county showing taxes thereon paid prior to judgment. Besides, it is manifest that the elimination of plaintiffs' house and lot from the judgment of confirmation was beneficial to them. Therefore, they may not be heard to predicate error on any such nonprejudicial irregularity, especially so since the purchasers' bid of $110 for all the property remained unchanged and the full amount of the bid was paid for the vacant lots.

And in respect to the allegation that the bid and sale price of the lots was inadequate, it is enough to say that the record supports the court's finding to the contrary. There is no suggestion that the sale was not properly advertised, and the following stipulation appearing in the record would *900 seem to be conclusive against the plaintiffs on this point: "That the sale had on January 20, 1951, was conducted fairly and openly without suppression of bidding or any element of fraud and that Nelson Woodson and W. C. Coughenour, Jr. bid for themselves and not for anyone else directly or indirectly."

2. The plaintiffs complain that the commissioner advertised and sold the land, not "free and clear of all encumbrances" as directed by the judgment, but "subject to all outstanding City and County taxes and all local improvement assessments against the * * * property not included in the judgment * * *." As to this, it is noted that the plaintiffs failed to show prejudice by reason of the variance. The commissioner's report shows that the entire purchase price of $110 was consumed in payment of the tax-judgment and court costs.

3. Exceptions relating to alleged irregularities not brought forward or discussed in brief are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. pp. 562 and 563. The other exceptions brought forward by appellants, but not discussed herein, have been examined. They are overruled as being untenable.

It all comes to this: The summons, while irregular in form, was adequate to confer jurisdiction and bring the plaintiffs into court; and they have failed to show prejudice resulting from the defect in the form of the summons. As to the procedural irregularities alleged by the plaintiffs, they have shown no prejudice in law resulting therefrom. Therefore, while there is technical error in the findings and conclusion that the summons was strictly in accord with the applicable principles of law, nevertheless, upon the record as presented the errors are harmless and insufficient to affect the result.

It is here noted that ordinarily the remedy for attacking a judgment or proceeding for nonjurisdictional irregularity is by motion in the cause, rather than by independent action. Rosser v. Matthews, 217 N.C. 132, 6 S.E.2d 849; Bass v. Moore, 229 N.C. 211, 49 S.E.2d 391; McIntosh, N. C. Practice and Procedure, pp. 1121 and 1122. However, this question of procedure was not raised in the court below and is not presented here. Nevertheless, the summons and complaint in this action may be treated as a petition and motion in the tax foreclosure proceeding. Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124; Craddock v. Brinkley, 177 N.C. 125, 98 S.E. 280; Jarman v. Saunders, 64 N.C. 367.

We conclude that the court below reached the correct conclusion in holding that the defendants (plaintiffs herein) were served with summons and in adjudging that they be denied the relief sought.

In conclusion, it is observed that the court below found that in addition to the notice afforded by the summons, the plaintiff Floyd Beck was kept advised of proceedings at all crucial stages of the foreclosure action. First, the tax collector gave him notice that suit was about to be filed. Then the county attorney, by registered mail, advised Beck suit papers were being prepared and urged settlement of the taxes. Also, the court found as a fact that after entry of the judgment directing sale, the commissioner mailed both plaintiffs a copy of the notice of sale; and the plaintiffs, by stipulation filed in the lower court, admitted receiving from the commissioner a copy of his report of sale. Nevertheless, no response was made to any of these notices respecting the foreclosure proceeding, and this proceeding extended over a period of nearly two years.

Let the judgment below be modified as herein indicated, and as so modified it will be affirmed.

Modified and affirmed.