Beck v. Voncannon

• Decision Date: 20 May 1953
• Docket Number: No. 381,381
• Citation: 237 N.C. 707,75 S.E.2d 895
• Court: North Carolina Supreme Court
• Parties: BECK et ux. v. VONCANNON et al.

Page 895

75 S.E.2d 895

237 N.C. 707

BECK et ux. v. VONCANNON et al.

No. 381

Supreme Court of North Carolina.

May 20, 1953

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

Nelson Woodson, Salisbury, for defendants-appellees.

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 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 nonjurisdictional...