Hazelwood v. Bailey

• Decision Date: 10 February 1995
• Docket Number: No. 544PA93,544PA93
• Citation: 453 S.E.2d 522,339 N.C. 578
• Court: North Carolina Supreme Court
• Parties: Gary Emery HAZELWOOD v. Jimmy Dale BAILEY and William Calvin Bailey.

Page 522

453 S.E.2d 522

339 N.C. 578

Gary Emery HAZELWOOD v. Jimmy Dale BAILEY and William Calvin Bailey.

No. 544PA93.

Supreme Court of North Carolina.

Feb. 10, 1995.

Gabriel, Berry & Weston by M. Douglas Berry, Greensboro, and Cranfill, Sumner & Hartzog, L.L.P. by Richard T. Boyette and Edward C. LeCarpentier, III, Raleigh, for plaintiff-appellant.

Nichols, Caffrey, Hill & Evans, L.L.P. by Richard L. Pinto and Matthew L. Mason, Greensboro, for defendant-appellees.

FRYE, Justice.

Plaintiff presents two related issues on this appeal: (1) whether the trial court erred in granting defendants' motion to dismiss plaintiff's claim due to the incorrect designation of the county on the civil summons form, and (2) whether the trial court erred in denying plaintiff's motion to amend his summons under Rule 4(i) of the North Carolina Rules of Civil Procedure to substitute the correct county on the summons when there was no showing of any material prejudice to defendants. We answer the first question in the affirmative and therefore reverse the Court of Appeals. As to the second question, we conclude that the trial court failed to exercise its discretion in denying plaintiff's motion to amend the summons and therefore remand this case to the Court of Appeals with instructions that it further remand to the trial court for an exercise of the trial court's discretion on this question in accordance with this opinion.

The procedural history of this case is as follows: Plaintiff commenced this action by filing a complaint in Superior Court, Rockingham County, on 2 July 1992, seeking damages for personal injuries received in an automobile accident on 5 July 1989. Plaintiff's complaint correctly designated Rockingham County as the county in which the action was filed. However, the civil summons form, issued by a deputy clerk of Superior Court, Rockingham County, directed defendants to answer the complaint in Guilford County. On 7 July 1992, defendants were served with both the summons and the complaint. In order to facilitate settlement discussions, plaintiff granted defendants an extension of time to file an answer to the complaint.

On 25 November 1992, defendants filed an answer in Superior Court, Rockingham County. In their answer, defendants asserted a motion to dismiss the complaint for insufficiency of process and insufficiency of service of process pursuant to Rule 12(b)(4) and (5). On 8 December 1992, following a pretrial conference, the trial judge signed an order which indicated that there were no pending motions or other matters which would require a delay in calendaring the case and established a discovery completion date and trial date for the matter. On 16 December 1992, defendants filed an offer of judgment in Superior Court, Rockingham County.

On 10 February 1993, plaintiff filed a motion to amend the summons to correctly designate Rockingham County as the county where the action was pending, pursuant to Rule 4(i) of the Rules of Civil Procedure. A motions hearing was held before Judge Peter M. McHugh at the 22 February 1993 Civil Session of Superior Court, Rockingham County. In an order entered 14 April 1993, Judge McHugh, concluding that the civil summons was void because of the designation of the incorrect county, allowed defendants' motion to dismiss the complaint and denied plaintiff's motion to amend the summons. Plaintiff appealed to the Court of Appeals, which affirmed the trial court in an unpublished opinion filed 2 November 1993. Hazelwood v. Bailey, 112 N.C.App. 543, 436 S.E.2d 417 (1993). This Court allowed plaintiff's petition for discretionary review on 3 March 1994.

Plaintiff first contends that the trial court erred in granting defendants' motion to dismiss pursuant to Rules 12(b)(4) and (5) of the North Carolina Rules of Civil Procedure. Plaintiff argues that the designation of the incorrect county on the civil summons form is not a jurisdictional defect but rather an irregularity or error in form correctable by amending the summons in accordance with Rule 4(i). We agree.

"The purpose of a service of summons is to give notice to the party against whom a proceeding is commenced to appear at a certain place and time and to answer a complaint against him." Harris v. Maready, 311 N.C. 536, 541, 319 S.E.2d 912, 916 (1984). Rule 4 of the North Carolina Rules of Civil Procedure, which governs process and the service of process, is intended to provide notice of the commencement of an action and " 'to provide a ritual that marks the court's assertion of jurisdiction over the lawsuit.' " Id. at 541-42, 319 S.E.2d at 916 (quoting Wiles v. Welparnel Constr. Co., 295 N.C. 81, 84, 243 S.E.2d 756, 758 (1978)).

In regard to defects in a summons, this Court has stated:

Where there is a defect in the process itself, the process is generally held to be either voidable or void. Where the process is voidable, the defect generally may be remedied by an amendment because the process is sufficient to give jurisdiction. Where the process is void, however, it generally cannot be amended because it confers no jurisdiction. 62 Am.Jur.2d Process § 21 (1972).

Maready, 311 N.C. at 542, 319 S.E.2d at 916.

Rule 4(b) provides, in pertinent part, that a summons "shall contain the title of the cause and the name of the court and county wherein the action has been commenced." N.C.G.S. § 1A-1, Rule 4(b) (1990). The summons in this case contains the title of the cause and the name of the court wherein the action was commenced. The only defect in the summons is the designation of the incorrect county. Therefore, the critical question in this case is whether the designation of the incorrect county in the summons renders it void or voidable.

The trial court and Court of Appeals relied on previous Court of Appeals' decisions and language from decisions of this Court in concluding that the summons in this case was void and that plaintiff's action must be dismissed. In Brantley v. Sawyer, 5 N.C.App. 557, 169 S.E.2d 55 (1969), the Court of Appeals held that the copy of the summons served on the defendant directing him to appear and answer in a county other than the one where the action was instituted was a fatal variance, incapable of conferring jurisdiction over defendant. The court in Brantley also reversed the trial court's grant of the plaintiff's motion to amend the summons to designate the correct county, stating that "[a]mendments may not be made to confer jurisdiction." Id. at 564, 169 S.E.2d at 59. The Brantley decision was followed by the Court of Appeals in Grace v. Johnson, 21 N.C.App. 432, 204 S.E.2d 723 (1974) (holding that the trial court erred in denying defendant's motion to quash a summons which commanded the defendant to appear and answer in a county other than the one in which the action was pending, even 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 did not confer jurisdiction of the court over defendants).

The Brantley court relied on language from this Court's decisions in Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283 (1934), and Washington County v. Blount, 224 N.C. 438, 31 S.E.2d 374 (1944). In Harrell v. Welstead, the plaintiff instituted her action in Currituck County, but the summons served on the corporate defendant directed it to appear before the clerk of court in Pasquotank County. The corporate defendant's answer was received in Currituck County a day late, and a judgment by default and inquiry was entered. This Court set aside the default judgment, stating that "[a] default judgment rendered against a defendant in an action where he has never been served with process returnable to the proper county, nor appeared in person or by attorney, is not simply voidable, but void, and will be set aside on motion." Harrell, 206 N.C. at 819, 175 S.E. at 285.

In Washington County v. Blount, this Court affirmed the trial court's order which denied defendants' motion to set aside a tax foreclosure sale on the ground that the summons was defective and allowed the plaintiff to amend the summons by inserting the date of issue and having the clerk of court sign the summons. In distinguishing that case from its earlier decision in Harrell, the Court noted that while the omissions of the date and signature of the clerk were "harmless irregularities" which did not "mislead or prejudice" the defendants "nor affect the jurisdiction of the court," in Harrell, "there was a fatal variance between the place where defendant was commanded to appear and file its answer and the place where the suit was actually pending." Washington County, 224 N.C. at 440-41, 31 S.E.2d at 376.

Citing the cases discussed above, defendants contend that the doctrine of stare decisis requires this Court to hold that the summons in this case is void rather than voidable. However, in recent decisions, we have emphasized that while this Court attaches great importance to stare decisis, it will not be applied "when it results in perpetuation of error or grievous wrong, since the compulsion of the doctrine is, in reality, moral and intellectual, rather than arbitrary and inflexible." Wiles v. Welparnel Constr. Co., 295 N.C. 81, 85, 243 S.E.2d 756, 758 (citations omitted). Our recent decisions interpreting the Rules of Civil Procedure have focused on substance rather than form. Lemons v. Old Hickory Council, 322 N.C. 271, 275, 367 S.E.2d 655, 657 (" 'The aim [of the Rules] is to achieve simplicity, speed and financial economy in litigation. Liberality is the canon of construction.' ") (quoting James E. Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intra.L.Rev. 1, 6 (1968)), reh'g denied, 322 N.C. 610, 370 S.E.2d 247 (1988).

In determining whether the summons in the...