Williams v. Bray

159 S.E.2d 556 (1968)

273 N.C. 198

Marie Moose WILLIAMS, Plaintiff, v. Carl Wayne BRAY, Defendant.

No. 684.

Supreme Court of North Carolina.

March 6, 1968.

*558 Max D. Ballinger, Greensboro, for plaintiff.

Jordan, Wright, Henson & Nichols and William L. Stocks, Greensboro, for defendant.

BRANCH, Justice.

Appellant assigns as error the failure of the trial judge to make findings of fact relating to his motion to dismiss.

In the case of J. A. Jones Construction Co. v. Local Union 755, etc., of Electrical Workers Union, 246 N.C. 481, 98 S.E.2d 852, the defendant made motion to dismiss the action on the ground of invalid service. The trial judge heard evidence on the motion, found no facts, and denied and overruled the motion. Defendant did not request findings of fact upon its motion to dismiss. Overruling defendant's assignment of error in respect to the motion to dismiss, this Court stated:

"* * * There is no statute which required Judge Sharp to find the facts on this `motion to dismiss and special demurrer,' and in the absence of a request that findings of fact be made, `it is presumed that the judge, upon proper evidence, found facts sufficient to support his judgment.' Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287, 288."

See also Supplement, Vol. 1 Strong's N. C. Index, Appeal and Error, § 22, and the cases cited thereunder.

Here, appellant made no request for findings of fact. The evidence heard by the trial judge was uncontradicted. By authority of cases above cited, appellant's assignment of error as to failure of the trial judge to make findings of fact is overruled.

Appellant contends that his motion to vacate and set aside the original summons was erroneously denied. This assignment of error presents the question of whether the original summons was issued.

A civil action is commenced by the issuance of summons, G.S. § 1-88, and the date it bears is prima facie evidence of the date of issuance. G.S. § 1-88.1. Such summons must be served by the sheriff to whom it is addressed within twenty days after the date of its issue; and if not served within twenty days after the date of its issue upon every defendant, it must be returned by the officer holding the same for service to the clerk of court issuing the summons, with notation thereon of its nonservice and the reasons therefor. G.S. § 1-89.

This Court has many times considered the meaning of the word "issue" in relation to summons as affecting commencement of actions. A review of some of these cases is helpful in considering the matters decisive of this appeal.

In the case of Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912, the Court considered when a summons was issued in connection with a plea of the statute of limitations as a bar to the action. The Court stated:

"The presumption is that it (summons) was issued at the time it bears date, and the burden is on defendant to show that it did not. * * * (Emphasis ours.) "An action is commenced by issuing a summons. Code, § 199. And an action is commenced when a summons is issued against a defendant. Id., § 161. This involves the question as to what is meant by the word `issue,' and we are of the opinion that it means going out *559 of the hands of the clerk, expressed or implied, to be delivered to the sheriff for service. If the clerk delivers it to the sheriff to be served, it is then issued; or if the clerk delivers it to the plaintiff, or some one else, to be delivered by him to the sheriff, this is an issue of the summons; or, as is often the case, if the summons is filled out by the attorney of plaintiff, and put in the hands of the sheriff. This is done by the implied consent of the clerk, and, in our opinion, constitutes an issuance from the time it is placed in the hands of the sheriff for service. But a summons simply filled up and lying in the office of an attorney would not constitute an issuing of the summons, as provided for in The Code."

The facts in the case of McClure v. Fellows, 131 N.C. 509, 42 S.E. 951, show that summons was filled out and signed by the clerk, but remained in the office of the clerk and were never issued to the sheriff or to any one for him. An order of publication of summons and of a warrant of attachment was duly signed by the clerk, and the same was duly published. Defendants entered a special appearance and moved to vacate the attachment upon the ground that no summons had issued. The trial judge overruled the motion. Holding that the trial judge erred, this Court stated:

"The summons was not issued. It did not pass from the hands of the clerk. It was never delivered to the sheriff, nor to any one for him, expressly or impliedly. Therefore it was never issued. Webster v. Sharpe, 116 N.C. 466 (at page 471) [21 S.E. 912]. It was in process of issuance, and had it been delivered to the sheriff, or to some one for him, its issuance would have then become complete, and been in force and of effect from the time of the filling out and dating by the clerk."

In the case of Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215, this Court in considering the issuance and service of summons, stated:

"It seems clear that the rule prescribed by these statutes is that in order to bring a defendant into court and hold him bound by its decree, in the absence of waiver or voluntary appearance, a summons must be issued by the clerk and served upon him by the officer within ten days after date of issue, and that if not served within that time the summons must be returned by the officer to the clerk with proper notation. Then, if the plaintiff wishes to keep his case alive, he must have an alias summons issued. In the event of failure of service within the time prescribed, the original summons loses its vitality. It becomes functus officio. There is no authority in the statute for the service of that summons on the defendant after the date therein fixed for its return, and if the plaintiff desires the original action continued he must cause alias summons to be issued and served."

Defendant relies heavily on the case of Deaton v. Thomas, 262 N.C. 565, 138 S.E.2d 201, where Thomas, on 3 April 1963, had summons issued to the sheriff of Mecklenburg County by the deputy clerk of the Superior Court of Gaston County against Deaton and another. The Mecklenburg County sheriff made his return thereof on 17 April 1963 to the effect that Deaton was not to be found in Mecklenburg County. Thomas filed complaint on 23 April 1963 and was allowed ten additional days for service. An order was entered 23 April 1963 on the original summons extending the time of service of the summons until 13 May 1963. The order and summons were not sent to the sheriff of any county and no attempt was made to serve the summons; instead, counsel for Thomas took the summons from the clerk's office and kept it in his possession until 20 May 1963, at which time he took the original summons and order to the clerk, who endorsed a 20-day extension on the summons, dating from 20 May 1963. The summons as extended was delivered to counsel for Thomas and kept in his possession without *560 delivery to anyone. Time for service of the summons and complaint was purportedly extended to 1 August 1963 for 20 days and was sent to the sheriff of Mecklenburg County on 2 August 1963 and served on Deaton on 3 August 1963.

Deaton commenced his action in the Superior Court of Mecklenburg County against Thomas on 5 July 1963. Summons was sent to the sheriff of Gaston County on 9 July 1963 and duly served on Thomas the same day. A duly verified complaint, filed 19 July 1963, and order of service were served on Thomas on 22 July 1963.

In his answer Thomas pleaded the pendency of his action instituted in Gaston County Superior Court on 3 April 1963 in bar of Deaton's right to maintain his action. This Court, affirming the lower court's decision which overruled the plea in abatement, stated:

"* * * when the order was entered on the original summons on 23 April, 1963, extending the time in which to serve the summons until 13 May 1963, the original summons became functus officio at the expiration of the extended time since it was never delivered to the Sheriff of Mecklenburg County for service but was kept in the possession of counsel for Grady Thomas, Jr., who made no effort to have it served. Consequently, when the order was entered on 1 August 1963 extending the time for service for twenty days, more than ninety days had elapsed since the original summons was issued on 3 April 1963. Likewise, more than ninety days had elapsed since the return of the unserved summons by the Sheriff of Mecklenburg County on 17 April 1963; in the meantime, the original summons had not been kept alive."

The Deaton case is factually distinguishable from the instant case, in that in Deaton there was a discontinuance because counsel kept summons in his possession without any delivery or attempted delivery to the serving officer.

In the instant case summons left possession of the issuing officer and was delivered to plaintiff's attorney for delivery to the sheriff. Plaintiff's attorney caused the summons to be transmitted to the proper officer for service. Defendant's evidence did not rebut the presumption that the summons issued at the time it was dated. The summons was "issued," and was a proper basis for the issuance of an alias summons.

We recognize, however, that since the original summons has lost its vitality, to prevent a discontinuance of the action (and thereby toll the statute of limitations), plaintiff must cause alias summons to be issued and served. Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215.

G.S. § 1-95, in part, provides:

"* * * where the defendant in a civil action or special proceeding is not served with summons within twenty days, the plaintiff may sue out an alias or pluries summons, returnable in the same manner as original process. An alias or pluries summons may be sued out at any time within ninety days after the date of issue of the next preceding summons in the chair of summonses * * *."

The duty is placed upon plaintiff to sue out the alias or pluries summons, if preceding writs have proved ineffectual, in order to avoid a discontinuance of the action. In order for the plaintiff to cause an alias or pluries summons to issue, he may apply orally or in writing to the clerk of superior court, and no order of court is necessary to authorize the clerk to issue such summons. McIntyre v. Austin, 232 N.C. 189, 59 S.E.2d 586.

Appellant contends that the alias summons issued on 8 November 1966 was improper since the original summons was not in the file of the clerk of superior court of Guilford County to show whether service had been effected.

*561 We find authority in this jurisdiction for the proposition that an alias summons issues only when the original summons has not been served. Cherry v. Woolard, 244 N.C. 603, 94 S.E.2d 562; Hatch v. Alamance R. R., 183 N.C. 617, 112 S.E. 529. The authorities examined do not decide the effect of attempted issuance of alias summons before return of the original summons showing no service, nor is it necessary that this question be decided in the instant case.

If the summons designated "alias and pluries" and issued on 8 November 1966 was not void because it was issued before return of the original summons, it otherwise complied with the law as being a process successively and properly issued and served so as to preserve a continuous single action referable to the date the original summons was issued. On the other hand, if the writ be void, its purported issuance becomes surplusage and we must consider the effect of the writ designated "alias summons" which plaintiff sued out of the office of the clerk of superior court of Guilford County on 28 December 1966. The writ showed the following return:

"OFFICER'S RETURN

"Received December 1966 Jan. 3, 1967. Served December 1966 Jan. 3, 1967, by delivering to, placing in hand with, and leaving with Carl Wayne Bray a copy of:

1. This Alias Summons. 2. Application for Extension of Time to File Complaint and Order Extending Time to File Complaint. 3. Summons for Relief Where Time is Extended to File Complaint issued October 19, 1966. 4. Complaint filed in the cause on November 8, 1966. 5. Order Directing Service of Complaint, dated December 28, 1966. Fee, $1.50 Paid $1.50 CARL H. AXSOM, Sheriff Rockingham County

By: W. R. Lovelace, Deputy."

The summons in its body contained the following:

"You having heretofore on the 19th day of October, 1966, been commanded to summon the defendant hereinafter named, and said summons not having been served, and this being an alias summons issued within ninety days after the date of issue of the next preceding summons in the chain of summonses: * * *."

This writ marked "Alias Summons" was issued after the original summons had been returned to the office of the clerk of superior court of Guilford County. The original summons indicated that defendant was not to be found, and showed that the service had not been made within twenty days of its issue, which is tantamount to a return of nonservice. Thus, the original summons and the return thereon show the original to be a proper basis for the issuance of an alias summons. Further, the summons was issued within ninety days from the date of the original, and the information contained on its face made it referable and relate back to the original, so that the action dated from the date of the issuance of the original summons. Hatch v. Alamance R. R., supra; Ryan v. Batdorf, 225 N.C. 228, 34 S.E.2d 81; Webb v. Seaboard Air Line R. R., 268 N.C. 552, 151 S.E.2d 19. If the writ dated 8 November 1966 did not avoid a discontinuance of the action, the process labeled "Alias Summons," which was issued 28 December 1966 and which referred back to the original summons, was a valid alias summons and was effectual in avoiding a discontinuance.

There was no discontinuance of the action as originally instituted.

*562 The trial court correctly disallowed defendant's motions to vacate and set aside the original summons.

Affirmed.

HUSKINS, J., took no part in the consideration or decision of this case.