Everhart v. Sowers, 8222SC509
| Decision Date | 06 September 1983 |
| Docket Number | No. 8222SC509,8222SC509 |
| Citation | 63 N.C.App. 747,306 S.E.2d 472 |
| Parties | Nathan P. EVERHART v. Billy Joe SOWERS and Billy Joe Sowers, t/a Reedy Creek Motors. |
| Court | North Carolina Court of Appeals |
Thomas K. Spence, Concord, for plaintiff-appellant.
Brinkley, Walser, McGirt, Miller & Smith by Charles H. McGirt and Stephen W. Coles, Lexington, for defendants-appellees.
The sole question presented by this appeal is whether plaintiff's action is barred by the statute of limitations. The applicable sections of the North Carolina Statutes, G.S. 1-15 and 1-52(16), provide in effect that an action based on personal injury must be commenced within three years of the date on which the claim accrued. For purposes of personal injury, the claim is deemed to have accrued when the injury became or should have become apparent to the claimant.
Plaintiff argues that the trial court's grant of summary judgment for defendants was improper in that the statute of limitations was not a bar to plaintiff's action. Plaintiff contends that his entry of notice of voluntary dismissal without prejudice with respect to the 30 January 1980 complaint entitled him under Rule 41(a) to recommence the same action at any time within one year from the date of the voluntary dismissal.
Defendants contend that the summonses issued in connection with the 30 January 1980 complaint were fatally defective in that they failed to indicate the county where the action was pending. As such, defendants argue, the summonses were ineffective for purposes of obtaining in personam jurisdiction over them. Since the court had no jurisdiction, defendants contend that any subsequent proceedings in the action, including plaintiff's taking a voluntary dismissal without prejudice, did not affect them and were ineffective to suspend the running of the statute of limitations.
Plaintiff contends that the failure to indicate on the summonses the county where the action was pending was a nonjurisdictional defect in form and was, therefore, sufficient to give the court jurisdiction over defendants. In support of this contention, plaintiff cites the case of Beck v. Voncannon, 237 N.C. 707, 75 S.E.2d 895 (1953).
Beck involved a situation where a summons had issued over the signature of the Deputy Clerk of Court rather than the Clerk, as purported on the face of the summons. Defendant in that case contended that the summons, therefore, did not meet the requirements of due process and was ineffectual to confer jurisdiction. In overruling that contention, the Beck court held that such formal irregularities were non-jurisdictional, not fatal to the action, and could be corrected by amendment.
However, with regard to the character of the defect in the summonses in the instant case, the case of Grace v. Johnson, 21 N.C.App. 432, 204 S.E.2d 723 (1974), is directly on point. That case holds that where an action is filed in one county and summons issues directing defendant to appear and answer in another county, the summons is fatally defective. A fatally defective summons is incapable of conferring jurisdiction. Philpott v. Kerns, 285 N.C. 225, 203 S.E.2d 778 (1974). The summonses issued in connection with the filing of the 30 January 1980 complaint did not confer jurisdiction of the court over defendants in that action.
The question that remains is how this failure to obtain jurisdiction affects the rights of the parties with respect to the statute of limitations and plaintiff's ability to preserve his claim under Rule 41(a).
Under the Rules of Civil Procedure, an action is commenced by the filing of a complaint or the issuance of a summons. G.S. 1A-1, Rule 3. Rule 4(a) states, "Upon the filing of a complaint, summons shall be issued forthwith, and in any event within five days." (Emphasis added.) Due process requires that a party be properly notified of the proceeding against him. Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570 (1966...
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In re A.B.D.
...at 158. If a new summons is issued after the original suit is discontinued, it begins a new action. Rule 4(e); Everhart v. Sowers, 63 N.C.App. 747, 751, 306 S.E.2d 472, 475 (1983). Johnson, 98 N.C.App. at 148-49, 389 S.E.2d at 851 (emphasis Because Petitioner failed to obtain an endorsement......
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Hazelwood v. Bailey
...though plaintiff discovered the error and notified defendant only eight days after defendant was served), and in Everhart v. Sowers, 63 N.C.App. 747, 306 S.E.2d 472 (1983) (holding that summonses which incorrectly designated the county where the action was pending were fatally defective and......
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...any of these "John Does." As a result, since Plaintiffs' action against these "John Does" never commenced, Everhart v. Sowers, 63 N.C. App. 747, 750-751, 306 S.E.2d 472, 475 (1983), overruled on other grounds by Hazelwood v.Bailey, 339 N.C. 578, m 453 S.E.2d 522 (1995), the order at issue i......
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...manner prescribed by statute.'" Latham v. Cherry, 111 N.C.App. 871, 874, 433 S.E.2d 478, 481 (1993)(quoting Everhart v. Sowers, 63 N.C.App. 747, 750, 306 S.E.2d 472, 474 (1983)), cert. denied, 335 N.C. 556, 441 S.E.2d 116 (1994). This Court has recently held that the failure to issue a summ......