Jones v. Whitaker
| Decision Date | 19 October 1982 |
| Docket Number | No. 8121SC1360,8121SC1360 |
| Citation | 59 N.C.App. 223,296 S.E.2d 27 |
| Court | North Carolina Court of Appeals |
| Parties | Marlene J. JONES v. Shirley Sapp WHITAKER and Charles Kendall Whitaker. |
Petree, Stockton, Robinson, Vaughn, Glaze and Maready, by Grover G. Wilson and Michael L. Robinson, Winston-Salem, for defendants, appellees.
The only question we need consider on this appeal is whether proper service of summons and complaint was had on the defendants, Shirley Sapp Whitaker and Charles Kendall Whitaker. Plaintiff first contends the trial judge erred in dismissing her claim against the defendant Shirley Sapp Whitaker for lack of proper service. Defendants, citing Roshelli v. Sperry, 57 N.C.App. 305, 291 S.E.2d 355 (1982), argue service on the defendant Shirley Sapp Whitaker was improper since the summons and complaint served on defendant Shirley Sapp Whitaker named Sherrie Sapp Whitaker.
Although service of process should correctly state the name of the parties, a mistake in the names is not always a fatal error, and as a general rule a mistake in the given name of a party who is served will not deprive the court of jurisdiction. 62 Am.Jur.2d Process § 18 (1972). As stated in Patterson v. Walton, 119 N.C. 500, 501, 26 S.E. 43 (1896), "Names are to designate persons, and where the identity is certain a variance in the name is immaterial." Also, error or defects in the pleadings not affecting substantial rights are to be disregarded. Id. When original process has been served properly and amendments to it are to make process and pleadings consistent, the court will retain jurisdiction. Fountain v. County of Pitt, 171 N.C. 113, 87 S.E. 990 (1916).
In the present case, the record discloses that proper service of process was had on the defendant, Shirley Sapp Whitaker, on 3 February 1981. The fact that the summons and complaint were directed to Sherrie Sapp Whitaker and the deputy sheriff changed the name from Sherrie to Shirley when he served the defendant is of no legal significance since the proper party was actually served. Under these circumstances, the defendant could not have suffered any prejudice. All that is required is that the proper party be properly served. The case cited by defendants, Roshelli v. Sperry, is clearly distinguishable. There the proper party was not served. Furthermore assuming only the original complaint was served on the defendant the amending of the complaint to correct the misnomer for the sake of conformity in process and pleading did not invalidate the earlier proper service. 171 N.C. at 115, 87 S.E. at 992.
With respect to the defendant Charles Whitaker, the defendant contends the court correctly dismissed the action against him because the amended complaint, filed on 27 February 1981, discloses on...
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