Annotate this Case

124 S.E.2d 105 (1962)

256 N.C. 434


No. 94.

Supreme Court of North Carolina.

February 28, 1962.

*106 Williams, Williams & Morris, by R. R. Williams, Jr., Asheville, for defendant, appellant.

*107 Willson & Riddle, by Robert B. Willson, Asheville, for plaintiff, appellee.

HIGGINS, Justice.

The superior court acquires jurisdiction of a plaintiff by his institution of an action in that court. It acquires jurisdiction of the defendant by the service of the summons and the complaint. However, under certain conditions the plaintiff is not required to file and serve the complaint at the time the summons is issued and served. G.S. § 1-121 provides: "* * * the clerk may * * * on application of plaintiff by written order extend the time for filing complaint to a day certain not to exceed twenty (20) days, * * * said application and order shall state the nature and purpose of the suit."

The delivery of copies of the summons and order extending time for the delayed filing, and the complaint, when filed, complete the service and give the court jurisdiction of the defendant. Until the cause is at issue the clerk acts for the court. His powers and duties are not to be confused with those of the judge who has wide discretionary powers of amendment not given to the clerk. G.S. § 1-163; Modern Electric Co. v. Dennis, 255 N.C. 64, 120 S.E.2d 533; Sawyer v. Cowell, 241 N.C. 681, 86 S.E.2d 431; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785.

The defendant's first motion to quash the summons and dismiss the action for failure of the plaintiff's application and the clerk's order to state the nature and purpose of the action cannot be sustained. The intent of the statute was to require the plaintiff to alert the defendant by giving preliminary notice of the nature of the claim and the purpose of the suit, and that the ultimate factual averments would follow in a complaint later to be filed. The application and order in this case appear to be sufficient for the intended purpose of alerting the defendant that a complaint would be filed alleging damages in the sum of $100,000 as a result of the defendant's actionable negligence. The question is discussed in Whitchurst v. Anderson, 228 N.C. 787, 44 S.E.2d 358.

After the plaintiff actually filed the complaint, a second motion to dismiss was interposed upon the ground the purpose and nature of the suit were limited by the application and order to damages resulting from negligence; whereas, the complaint stated a cause of action based on breach of implied warranty. However, a plaintiff may join two causes of action in the same complaintone in tort, the other in contractif the two causes arise out of the same transaction or are connected with the same subject of action. G.S. § 1-123 (1); Wrenn v. Graham, 236 N.C. 719, 74 S.E.2d 232; Pressley v. Great Atlantic & Pacific Tea Co., 226 N.C. 518, 39 S.E.2d 382; Richmond Cedar Works v. J. L. Roper Lumber Co., 161 N.C. 603, 77 S.E. 770; Cook v. Smith, 119 N.C. 350, 25 S.E. 958. The plaintiff, therefore, could have alleged two separate causes of actionone in tort for negligent breach of duty, the other in contract for breach of implied warranty. If he alleged only one, he could, as a matter of right before time to answer expired, amend and allege the other. Or he could amend by striking one and substituting the other. G.S. § 1-161; Pruitt v. Taylor, 247 N.C. 380, 100 S.E.2d 841; Teague v. Siler City Oil Co., 232 N.C. 469, 61 S.E.2d 345.

In the answer attached to the second motion, the defendant alleged, as a plea in bar, the lapse of more than three years between the date the action accrued, August 8, 1958, and the beginning of action for breach of contract, August 24, 1961, the day the complaint was filed. Whether (1) the plaintiff filed a complaint different in nature from that which he was authorized to do by his application and order; (2) whether the complaint actually filed was the beginning of new action as of the filing date; (3) or whether the action in contract could be related back to the summons and escape the plea of the statute of limitations, *108 are questions not passed on by the superior court, hence not brought here by this appeal.

For the purposes of this appeal, we treat as a conclusion of law, and subject to review, the court's "finding of fact" that the petition and order substantially complied with G.S. § 1-121. The court's order denying the motions to quash the service and dismiss the action has the effect of retaining the parties before the court and requiring the defendant to answer, or otherwise plead.


WINBORNE, C. J., not sitting.