Philpott v. Kerns

Annotate this Case

203 S.E.2d 778 (1974)

285 N.C. 225

Viola H. PHILPOTT v. Allen F. KERNS and Jean Kerns.

No. 42.

Supreme Court of North Carolina.

April 10, 1974.

*780 Pearson, Malone, Johnson & DeJarmon by W. G. Pearson, II, and W. W. Perry, Durham, for plaintiff-appellant.

Haywood, Denny & Miller by George W. Miller, Jr., Durham for defendant-appellees.

SHARP, Justice:

The Court of Appeals correctly held that the court acquired no jurisdiction over defendants by the service of the summons issued in this case upon the Commissioner of Motor Vehicles. Under G.S. § 1-105 (1973 Supp.) in any action for damages against a nonresident which grows out of his operation of a motor vehicle upon the public highways of this State summons may be served upon the nonresident by leaving a copy thereof with the Commissioner of Motor Vehicles and transmitting a copy to the defendant by registered mail. The required contents of a summons are set out in G.S. § 1A-1, Rule 4(c), and one of the essential requirements is that the summons "shall be directed to the defendant or defendants."

This summons was patently defective in that it was not directed to defendants but to the Commissioner of Motor Vehicles, who was "summoned and notified to appear and answer" the complaint within thirty days after service. The contents of this summons do not differ materially from the one which we considered in Distributors v. McAndrews, 270 N.C. 91, 153 S.E.2d 770 (1967). In Distributors we said:

"The provisions [of G.S. 1-105] are in derogation of the common law and must be strictly complied with. . . . `Actual notice given in any manner other than that prescribed by the statute cannot supply constitutional validity to it or to service under it.'" Id. at 94, 153 S.E.2d at 772. . .

"They [defendants] did not make a general appearance, and summoning the Commissioner of Motor Vehicles was of no avail. Thus the court obtained no jurisdiction of the persons of the defendants." Id. at 97, 153 S.E.2d at 774.

G.S. § 1-105 as presently written became effective 1 January 1970. However, differences in the wording of the statute before and after that date are not material here. The decision in Distributors states the law applicable to the summons in this case. There is, however, a material difference between the facts in Distributors and the facts of this case.

Defendants in this case, before asserting their defense that the court had obtained no jurisdiction over their persons by answer or pre-answer motion as provided by Rule 12(b), (g), and (h)(1), secured an enlargement of time in which to plead. By so doing they made a general appearance, thereby submitting themselves to the court's jurisdiction and obviating the necessity of any service of summons. Simms *781 v. Mason's Stores, Inc. (decided contemporaneously herewith), N.P., 203 S.E.2d 769 (1974).

The Superior Court erred in dismissing this action for want of jurisdiction over the person of defendants. The decision of the Court of Appeals affirming its judgment is