Kleinfeldt v. Shoney's of Charlotte, Inc.

Annotate this Case

127 S.E.2d 573 (1962)

257 N.C. 791

Joseph KLEINFELDT v. SHONEY'S OF CHARLOTTE, INC., a Corporation.

No. 244.

Supreme Court of North Carolina.

October 17, 1962.

*574 Bradley, Gebhardt, DeLaney & Millette by S. M. Millette, Charlotte, for plaintiff appellant.

Carpenter, Webb & Golding by William B. Webb, Charlotte, for defendant appellee.

PER CURIAM.

Plaintiff's second assignment of error reads: "Assignment of error No. 2: The Court's finding of facts. Exception No. 2." When we refer to the preceding page of the record, we find a grouping of exceptions, and exception No. 2 is to the court's finding of fact No. 4, without stating what finding of fact No. 4 is. This assignment of error is not sufficient in form to present the alleged errors relied on, for the reason that we have repeatedly held that Rules 19(3) and 21, Rules of Practice in the Supreme Court, 254 N.C. 783 et seq., require an assignment of error to state clearly and intelligently what question is intended to be presented without the necessity of the Court going beyond the assignment of error itself "on a voyage of discovery" through the record to find the asserted error and the precise question involved. These rules are mandatory, and will be enforced. Greene v. Dishman, 202 N.C. 811, 164 S.E. 342; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325; *575 Tillis v. Cotton Mills, 244 N.C. 587, 94 S.E.2d 600; Armstrong v. Howard, 244 N.C. 598, 94 S.E.2d 594; Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271; Hunt v. Davis, 248 N.C. 69, 102 S.E.2d 405; Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294; McArthur v. Stanfield, 254 N.C. 627, 119 S.E.2d 467; North Asheboro-Central Falls Sanitary District v. Canoy, 254 N.C. 630, 119 S.E.2d 448; State v. Reel, 254 N.C. 778, 119 S.E.2d 876; State v. Burton, 256 N.C. 464, 124 S.E.2d 108; Balint v. Grayson, 256 N.C. 490, 124 S.E.2d 364; Jones v. Saunders, 257 N.C. 118, 125 S.E.2d 350. It will readily be perceived that the above assignment of error falls short of the requirements of our rules. Nevertheless, we have examined the affidavits of Paul Gocke and W. Terry Young and the evidence, and they show that the evidence contrary to the officer's return on the original summons consists of more than a single contradictory affidavit (the contradictory affidavit of Paul Gocke), and is clear and unequivocal to the effect that when a copy of the complaint was delivered to Gocke, assistant manager of a restaurant operated by defendant in the city of Charlotte, by a deputy sheriff, a copy of the original summons was not delivered to Gocke and was not attached to the copy of the complaint. Judge Pittman's findings of fact are supported by the required amount of competent evidence, Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239. Plaintiff's second assignment of error is overruled.

Plaintiff's third assignment of error reads: "Assignment of Error No. 3: The Court's Conclusion of Law. Exception No. 3." This assignment of error is overruled.

Service of summons, unless waived, is a jurisdictional requirement. Dunn v. Wilson, 210 N.C. 493, 187 S.E.2d 802; Stancill v. Gay, 92 N.C. 462. A meritorious defense is not essential or relevant on a motion to set aside a default judgment for want of jurisdiction by reason of want of service of summons. Harrington v. Rice, supra. Judge Pittman having found as a fact there was no service of summons on defendant, and there being no evidence or contention of a waiver of service by defendant, it follows that the judgment by default and inquiry was void, and Judge Pittman's conclusions are correct. Dunn v. Wilson, supra; Harrington v. Rice, supra; East Carolina Lumber Co. v. West, 247 N.C. 699, 102 S.E.2d 248.

Plaintiff's first assignment of error is to the order, and is overruled. The findings of facts support the conclusions, and the conclusions support the judgment, and no error of law appears on the face of the record proper. City of Goldsboro v. R. R., 246 N.C. 101, 97 S.E.2d 486.

Defendant adopted the correct procedure of a motion in the case. Harrington v. Rice, supra.

The order below is

Affirmed.