Green v. Chrismon

• Decision Date: 15 December 1943
• Docket Number: 668.
• Citation: 28 S.E.2d 215,223 N.C. 724
• Parties: GREEN v. CHRISMON et al.
• Court: North Carolina Supreme Court

28 S.E.2d 215

223 N.C. 724

GREEN v. CHRISMON et al.

No. 668.

Supreme Court of North Carolina

December 15, 1943

J E. Green, administrator of Martha Green Chrismon, filed petition and motion in the cause for confirmation of the judgment previously rendered in a proceeding between the parties, and for adjudication that the service of the summons on the defendants in that proceeding was sufficient.

The facts pertinent to the issue involved may be summarized as follows: In 1940 G. E. Green, administrator of N. J. Chrismon, filed petition to sell land to make assets to pay debts. The heirs of the intestate were made parties defendant. It was admitted that the summons was issued and delivered to plaintiff for service August 15th, 1940 received by the sheriff September 21st, and served on twenty-four of the defendants September 23rd, 1940. None of the defendants were served within ten days of issuance of summons. No answer was filed or appearance made except by guardian ad litem of two infant defendants. Decree of sale was entered December 2, 1940, and thereafter sale confirmed and deed delivered January 20, 1941. The title of the purchaser at the sale, who was Martha Green Chrismon, and that of her administrator and heirs now claiming under her, was thereafter questioned by a prospective purchaser, and thereupon J. E Green, her administrator and heir, served notice on the defendants to show cause why the original judgment should not be confirmed and the service of summons on them adjudged to have been sufficient. Defendants, answering the motion, alleged that the service was invalid and the order of sale void. From an adverse ruling of the clerk, the defendants appealed to the Judge of the Superior Court who held that the attempted service of the summons on the defendants was a nullity, and that the judgment decreeing the sale was void.

From judgment denying his motion and dismissing his petition, plaintiff, administrator of Martha Green Chrismon, appealed.

Hoyle & Hoyle, of Greensboro, and Glidewell & Glidewell, of Reidsville, for appellant.

Sharp & Sharp, of Reidsville, and Henderson & Henderson, of Greensboro, for appellees.

DEVIN Justice.

Is the service of a summons on the defendant more than ten days after the date on which it is made returnable sufficient to bring the defendant into court, and to render a judgment by default based thereon valid and binding?

The answer to this question must be sought in the statutes regulating procedure, as interpreted by this court. The matter here brought in question arose in a special proceeding. By C.S. § 753, as amended by Pub.Laws 1939, c. 49, § 2, it is required that special proceedings be commenced by summons, and that the manner of service shall be the same as that prescribed for civil actions. It is by this section provided that the summons shall command the defendant to appear and answer the petition within ten days after service. In civil actions the defendant must appear and answer within thirty days after service. Common to both forms of action is the requirement that the summons be returned by the officer to the clerk. In C.S. § 476, as amended by Chap. 66, Public Laws 1927, is contained this provision: 'Summons must be served by the sheriff to whom it is addressed for service within ten days after the date of issue; * * * and, if not served within ten days after date of the issue upon every defendant, must be returned by the officer holding the same for service, to the clerk of the court issuing the summons, with notation thereon of its nonservice and the reasons therefor as to every defendant not served.'

Section 480 of Consolidated Statutes, as amended by Pub.Laws 1929, c. 237, § 2, regulates what shall be done in case of failure to serve within ten days, as follows: 'When the defendant in a civil action or special proceeding is not served with summons within the time in which it is returnable, 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 (90) days after the date of issue of the next preceding summons in the chain of summonses.' The use of the word 'may' in this statute has been by this court interpreted to mean 'must,' if the plaintiff wishes to avoid a discontinuance. McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274.

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.

In Hatch v. Alamance R. Co., 183 N.C. 617, 112 S.E. 529, 531, it was said: 'After the return day the writ lost its vitality, and service thereafter made could not confer upon the court jurisdiction over the defendant so served.' While the decision in that case antedated the amendment to the statute now in force, the principle is the same. Manifestly, the court regarded the provision of the statute fixing a definite time for the return of process as mandatory. This statement of the law was quoted with approval in McGuire v. Montvale Lumber Co., supra.

At the time of the decision in the McGuire case referred to (1925) the statute then in force made the summons returnable in not less than ten nor more than twenty days from issuance. The summons in that case was issued July 10th, and made returnable July 28th. It was not served or returned within the time fixed. The court said [190 N.C. 806, 131 S.E. 275]: 'Therefore, when the plaintiff failed to take any steps whatever to sue out an alias summons on the return date, to wit, July 28, 1925, the sheriff of Swain county, having not returned the process prior to that time showing whether service had been made or not, a discontinuance resulted as is contemplated in C.S. §§ 480, 481.'

In Webster v. Laws, 86 N.C. 178, 179, referring to a summons issued by a justice of the peace, Chief Justice Smith, speaking for the court, used this language: 'The process not having been served was exhausted on the day fixed for its return, and the action was in law then discontinued. This has been repeatedly decided in this court.'

In Neely v. Minus, 196 N.C. 345, 145 S.E. 771, 772, the facts were these: The first summons was issued on January 29 1927, and kept alive by alias or pluries summons. On September 1, 1927, a summons marked 'original' was issued by the clerk and returned 'defendant not to be found.' Thereafter, September 13, 1927, a pluries summons was issued, and no return made. Thereafter, on October 5, an original summons was issued by the clerk and directed to the sheriff of another county. This was served October 8th. The court said: 'From the record facts as set out, there is a clear discontinuance of the cause between September 1, 1927, and October 5, 1927.' See, also, Gower v. Clayton, 214 N.C. 309, 199 S.E. 77, 78, where the ruling upon the facts as stated by Winborne, J., was as follows: 'Here, while Mrs. W. M. Priddy was named a party defendant to the tax foreclosure suit, she was not served with original summons. The process was not kept alive by alias and pluries summons as...