Hooker v. Forbes
| Decision Date | 09 March 1932 |
| Docket Number | 175. |
| Citation | 162 S.E. 903,202 N.C. 364 |
| Parties | HOOKER et al. v. FORBES et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Cranmer, Judge.
Action by W. E. Hooker and another, executors of Mrs. Gertrude H Coward, deceased, against C. S. Forbes and another. From a judgment denying her motion to set aside and vacate a default judgment, defendant Clara Forbes appeals.
Absence of clerk's signature on summons held mere formal defect waived by defendant's general appearance, and therefore remediable by amendment nunc pro tunc (C.S. §§ 476, 547).
On March 9, 1923, the defendants executed and delivered to Gertrude H. Coward their promissory note under seal for $2,000 payable March 9, 1924, and on August 19, 1931, the plaintiffs brought suit to recover the amount due thereon. On September 21, 1931, no answer having been filed, the clerk of the superior court, in accordance with the regular practice and procedure, gave judgment against the defendants in the sum of $2,000, with interest from March 9, 1929, and the costs of the action. On December 18, 1931, the defendant Clara J. Forbes notified the plaintiffs that she would make a motion before the judge presiding in the superior court on January 18, 1932, to set aside and vacate the judgment. Her affidavit set out as grounds of her motion the failure of the officer to serve her with process and the failure of the clerk to sign the summons before it was delivered to the officer.
From the evidence introduced, the judge found the facts and set them out in the judgment. Clara J. Forbes averred that no summons had ever been served on her in the cause, while the plaintiffs relied upon the officer's return on the summons, together with an affidavit of the deputy sheriff that he read the summons to her and left with her a copy of the summons and complaint. The court found that proper service of process had been made.
In reference to issuing the summons, the finding is this "A summons was duly issued out of the office of the clerk of the Superior Court in favor of the plaintiffs and against the defendants in the action on the 19th day of August, 1931, and at the time of the issuance of said summons the plaintiffs duly filed a verified complaint, and at the time the said summons was filled out W. H. Woodard Vice-President of the Greenville Banking and Trust Company, one of the executors, requested the clerk not to hand the summons to the sheriff until his co-executor could come in and verify the complaint and sign the bond, and on the same date thereafter W. E. Hooker, the other executor, came into the clerk's office, verified the complaint and signed the bond; and thereupon the clerk of the court carried said summons and a copy of said summons and a copy of said complaint for each defendant to the sheriff's office and delivered same to the sheriff or his deputy; and then and there the clerk himself directed the sheriff or his deputy to serve the same upon the defendants, paying to the sheriff his fees for said service; that by oversight the clerk failed to sign said original summons."
It was adjudged that the service of process upon the defendants was valid, that the clerk sign the summons nunc pro tunc, and that the motion to set aside the judgment be denied. Clara J. Forbes excepted and appealed.
Harding & Lee, of Greenville, for appellant.
Albion Dunn, of Greenville, for appellees.
The sheriff's return notes the service of process by reading the summons to the defendants and by delivering to each of them a copy both of the summons and of the complaint. As the return is prima facie correct, it cannot be set aside, unless the evidence in contradiction is clear and unequivocal. Lake Drainage Commissioners v. Spencer, 174 N.C. 36, 93 S.E. 435; Raleigh Banking & Trust Co. v. Nowell, 195 N.C. 449, 142 S.E. 584. The affidavit of the appellant discredits the return, and that of the deputy sheriff supports it. The court found as a fact that the summons had been served as the statutes direct, and this finding is conclusive. Conestee Chemical Co. v. Long, 184 N.C. 398, 114 S.E. 465; Daugherty v. Com'rs, 183 N.C. 149, 110 S.E. 853. The principal exception relates to that part of the judgment which directs the clerk to affix his signature to the summons nunc pro tunc.
When the plaintiffs applied to the clerk for a summons against the defendants, they filed a complaint verified by one of the parties. The prosecution bond on the back of the summons was signed on behalf of the Greenville Banking & Trust Company, an executor, but the clerk did not issue the summons until the other executor had signed the bond and verified the complaint. Under the justification of the bond are the jurat and the clerk's signature. After the bond had been justified and the complaint filed, the clerk delivered the papers to the sheriff for service upon the defendants, not having signed his name to the summons.
This process must be signed by the clerk of the superior court having jurisdiction to try the...
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