Lee v. Hoff

• Decision Date: 29 April 1942
• Docket Number: 458.
• Citation: 19 S.E.2d 858,221 N.C. 233
• Parties: LEE v. HOFF et ux.
• Court: North Carolina Supreme Court

19 S.E.2d 858

221 N.C. 233

LEE v. HOFF et ux.

No. 458.

Supreme Court of North Carolina

April 29, 1942

This is a civil action and the summons was issued on December 20 1941, and the defendants designated therein as, "F. L Hoff and Mrs. F. L. Hoff". At the time the summons was issued, the plaintiff made application for an extension of time to file complaint and stated in said application the nature and purpose of the action, towit: "To collect a note due by defendants for $400.00 and interest from Dec. 21 1931, given Commercial National Bank of Raleigh and now owned by plaintiff."

The additional facts pertinent to this appeal are set out in the judgment entered by the Court below, as follows:

"This cause coming on to be heard before the undersigned Judge at the February Civil Term of the Wake County Superior Court upon the defendants' motion to dismiss which was made in a Special Appearance as appears in the record, the plaintiff having waived his rights to object to the hearing of the motion because of insufficient notice of the hearing and having asked permission of the Court to resist the motion and offer evidence in support of his contention the Court heard the motion and the plaintiff's evidence.

"The Deputy Sheriff, R. M. Saunders, who served the summons in this action, was sworn at the hearing as a witness and testified that he was the officer who served said summons that the summons, entitled 'H. J. Lee v. F. L. Hoff and Mrs. F. L. Hoff', which appears in the record was actually served on the defendants, F. T. Hoff and wife Mrs. F. T. Hoff; that he made the return on the summons indicating that the same was served on F. L. Hoff and wife, Mrs. F. L. Hoff; that his return was incorrect and that in fact he did serve the summons on F. T. Hoff and wife, Mrs. F. T. Hoff. There was no evidence to the contrary.

"The Court, therefore, finds as a fact that the summons set out in the record was, on December 22, 1941, duly served by R. M. Saunders, a Deputy Sheriff of Wake County, on the defendants, F. T. Hoff and wife, Mrs. F. T. Hoff, by delivering a copy of said summons, a copy of the application of extension of time to file a complaint and a copy of the order extending the time for filing the complaint which appear in the record, to each of said defendants. The Court further finds as a fact that within the time allowed by the order extending time to file the complaint and on the 8th day of January 1942, the plaintiff filed his complaint in this action in which the defendants were designated as Mrs. F. T. Hoff, F. T. Hoff.

"At the hearing the plaintiff moved that he be permitted, within the discretion of the Court, to amend the summons to conform with the complaint so as to show that the names of the defendants who were actually served with summons were F. T. Hoff and Mrs. F. T. Hoff, and further moved that the Court, within its discretion, permit him to amend the return of the Sheriff on said summons so as to show that the said summons was served on F. T. Hoff and Mrs. F. T. Hoff.

"The Court holds that the amendments requested by the plaintiff do not substantially change the nature of the cause of action, and that the plaintiff is entitled to have said amendments made and the Court, in its discretion, allows said amendments, and the Court denies the motion of the defendants, F. T. Hoff and Mrs. F. T. Hoff, to dismiss the action upon the grounds stated in their motion, and holds that said defendants are required to file answer to the complaint which was filed in connection with the summons that was served on the 22nd day of December 1941, and that no new summons is necessary in this action to bring the defendants into Court. The defendants are allowed 30 days from the date of this judgment to file answer to the plaintiff's complaint.

"This February 12, 1942. Leo Carr, Judge Presiding."

From the foregoing judgment the defendants appeal to the Supreme Court and assign error.

J. M. Templeton, of Raleigh, for plaintiff.

J. J. Fyne and Douglass & Douglass, all of Raleigh, for defendants.

DENNY Justice.

The defendants were properly served but in the wrong name; and through counsel, they entered a special appearance and moved to dismiss the action for want of jurisdiction.

The first and second exceptions are to the action of the Court in permitting, in its discretion, the Deputy Sheriff to testify on whom he actually served the summons and to granting of the motion of the plaintiff to amend the summons to conform to the complaint so as to show that the names of the defendants who were actually served with summons were F. T. Hoff and Mrs. F. T. Hoff; and to permit the return of the Sheriff on said summons to be amended accordingly.

An officer does not have the right to amend his return to a summons after the return is filed, but the Court, under its discretionary power, in meritorious cases may grant him leave to do so. Luttrell v. Martin, 115 N.C. 593, 17 S.E. 573; Campbell v. Smith, 115 N.C. 498, 20 S.E. 723; Swain v. Burden, 124 N.C. 16, 32 S.E. 319.

In the case of Luttrell v. Martin, supra, the Court said: "It was admitted that the summons had been served on the agent of defendant corporation February 23, 1892, but the return of the sheriff was unsigned, though indorsed in proper form on the summons. The judge did not exceed his powers, but exercised them properly, in permitting the sheriff to sign the return nunc pro tunc. Clark v. Hellen, 23 N.C. 421; Henderson v. Graham, 84 N.C. 496; Walters v. Moore, 90 N.C. 41; Williams v. Weaver, 101 N.C. 1, 7 S.E. 565."

The decisions of our Court are in harmony with the general rule in this respect as set forth in 21 R.C.L., 1329, Process, Sec. 77; "As the return of an officer is merely his answer touching what he is commanded to do by the writ, and as this answer is evidence, and generally the only admissible evidence, of the officer's proceedings, unless it is directly impeached, it ought to be true as well as certain, and if not true, the officer ought to be permitted on proper application to make it conform to the facts. Hence it is laid down that the return may, in general, be amended so far as necessary to make the record properly exhibit the facts. As long as the return continues within the officer's control, he has full power to amend it as he thinks proper, if there are no intervening rights which will be affected; but after the return is filed it cannot be amended without leave of court, and, according to some decisions, notice to the adverse party. *** Amendments of this description are not granted as a matter of right. The Court is bound in every case to exercise a sound discretion, and to allow or disallow an amendment as may best tend to the furtherance of justice."

These exceptions cannot be sustained.

The other exceptions are to the conclusions of law that the original summons was sufficient to bring the defendants into Court, and to the entering of the judgment as appears of record. These exceptions are likewise untenable.

The discretionary powers exercised by His Honor, in allowing the amendments and entering the judgment to which defendants except, were in accordance with the authority contained in C.S. Section 547 and the decisions of this Court. Lane v. Seaboard & R. R., 50 N.C. 25; Henderson v. Graham, supra; Jackson v. McLean, 90 N.C. 64; Bray v. Creekmore, 109 N.C. 49, 13 S.E. 723; Rosenbacher & Bro. v. Martin, 170 N.C. 236, 86 S.E. 785; Fountain v. Pitt County, 171 N.C. 113, 87 S.E. 990; Gordon v. Pintsch Gas Co., 178 N.C. 435, 100 S.E. 878; Clevenger v. Grover, 212 N.C. 13, 193 S.E. 12, 124 A.L.R. 82.

Unquestionably the crux of this case is the answer as to when the amended summons became effective. Was it from the date of amendment or did it relate back to the commencement of the action? The authorities sustain the position that the amended...