Integon General Ins. Co. v. Martin

• Decision Date: 16 September 1997
• Docket Number: No. COA96-1070,COA96-1070
• Citation: 490 S.E.2d 242,217 N.C.App. 440
• Court: North Carolina Court of Appeals
• Parties: INTEGON GENERAL INSURANCE COMPANY, Plaintiff-Appellant, v. Douglas Glenn MARTIN and Glenn Paul Martin, Defendants-Appellees.

Page 242

490 S.E.2d 242

217 N.C.App. 440

INTEGON GENERAL INSURANCE COMPANY, Plaintiff-Appellant, v. Douglas Glenn MARTIN and Glenn Paul Martin, Defendants-Appellees.

No. COA96-1070.

Court of Appeals of North Carolina.

Sept. 16, 1997.

Ackerman Law Firm, P.A. by C.O. Ackerman, Jr., Charleston, for plaintiff-appellant.

Moseley, Elliott & Sholar, L.L.P. by Bradley A. Elliot, Roanoke Rapids, for defendants-appellees.

McGEE, Judge.

Integon General Insurance Company (Integon) filed a complaint against Douglas Glenn Martin and Glenn Paul Martin with the Clerk of Superior Court for Mecklenburg County (Clerk) on 28 April 1995. Integon presented to the Clerk a civil summons which was then issued. Integon did not serve this summons, but within ninety days of the issuance of the first summons, Integon presented a second summons to the Clerk. This summons was also not served. Within ninety days of the issuance of this second summons, Integon presented a third summons to the Clerk, which was duly issued on 7 September 1995. The third summons was also never served. On 4 October 1995, a fourth summons was presented by Integon to the Clerk and was duly issued. The fourth summons, along with copies of the complaint attached to it, was served upon the defendant by the Sheriff of Northhampton County, North Carolina on 12 October 1995. No reference was made in the second, third, and fourth summons to the original summons and the box on the summons form designated for "alias or pluries" was not checked on any of the summonses.

The issue on appeal is whether the trial court properly dismissed the complaint for insufficiency of process. Rule 4(d) of the North Carolina Rules of Civil Procedure provides two methods by which to extend time for service upon a defendant in a civil action. The plaintiff argues that he successfully served the defendant by the second method using an alias or pluries summons within the ninety days prescribed by the Rule. We disagree. "The summons ... constitutes the exercise of the power of the State to bring the defendant before the court"; thus, "defects in the summons receive careful scrutiny." Childress v. Forsyth County Hosp. Auth., 70 N.C.App. 281, 285, 319 S.E.2d 329, 332 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985). "If a statute specifies that certain requirements must be complied with in the process of serving [a] summons, failure to follow these requirements results in a failure of service." Lynch v. Lynch, 302 N.C. 189, 196, 274 S.E.2d 212, 218 (1981).

To determine the requirements of service by an alias or pluries summons, we first examine the statutory language of N.C. Gen.Stat. § 1A-1, Rule 4(d) (Cum.Supp.1996) which states:

[t]he plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.

Case law has interpreted the statute's reference to "the chain of summonses" as an implicit requirement that an alias or pluries summons contain a reference in its body "to...