Lemons v. Old Hickory Council, Boy Scouts of America, Inc., No. 438PA87

Docket NºNo. 438PA87
Citation322 N.C. 271, 367 S.E.2d 655
Case DateMay 05, 1988
CourtUnited States State Supreme Court of North Carolina

Page 655

367 S.E.2d 655
322 N.C. 271
Brenda LEMONS
v.
OLD HICKORY COUNCIL, BOY SCOUTS OF AMERICA, INC.
No. 438PA87.
Supreme Court of North Carolina.
May 5, 1988.

Bailey & Dixon by David M. Britt, Gary S. Parsons, and Alan J. Miles, Raleigh, Bell, Davis & Pitt, P.A. by William K. Davis, Winston-Salem, for plaintiff-appellant.

Petree, Stockton & Robinson by G. Gray Wilson and R. Rand Tucker, Winston-Salem, for defendant-appellee.

MITCHELL, Justice.

This is an action involving interpretation of the statutory time periods for service of process under the North Carolina Rules of Civil Procedure. Specifically, we must decide in this case whether the Court of Appeals erred in affirming the trial court's order that denied the plaintiff's motion for an extension of time to serve an alias summons and dismissed the action. The trial court's order was based upon its conclusion that, as a matter of law, it was without authority to grant the plaintiff's motion for an extension of time under N.C.G.S. § 1A-1, Rule 6(b) to serve an alias summons on the defendant. In this case of first impression, we conclude that Rule 6(b) gives our trial courts the discretion to extend the time provided in Rule 4(c) for

Page 656

service of a summons. Accordingly, we reverse the Court of Appeals' decision.

The plaintiff, Brenda Lemons, allegedly was injured on 15 May 1982 when a twenty-foot wooden log being used as a flagpole fell and struck her on the head while it was being taken down under the defendant's supervision. The plaintiff contends that her injuries were caused by the negligence of the defendant, its agents, and its employees.

On 21 March 1984, the plaintiff commenced an action against the defendant seeking to recover for her injuries. This action was terminated on 6 February 1985 by voluntary dismissal without prejudice pursuant to N.C.G.S. § 1A-1, Rule 41(a)(1).

The present action was commenced on 6 February 1986 by the filing of a complaint and issuance of a summons. The initial summons was returned unserved, and an alias summons was issued[322 N.C. 273] on 2 May 1986. This alias summons was delivered to the Forsyth County Sheriff's Office on 2 June 1986 for service and was served on 5 June 1986, after the thirty days allowed for service of process under Rule 4(c) had expired.

On 23 June 1986, the defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted, lack of personal jurisdiction, insufficient process, and insufficient service of process. The defendant subsequently was served with an alias summons issued on 10 September 1986. Because this summons was not obtained within ninety days after the issuance of the last preceding summons, however, the action did not relate back to the original summons under Rule 4(d), and the statute of limitations had expired.

On 13 October 1986, the plaintiff filed a motion for a retroactive extension of time, nunc pro tunc, from 2 June to 6 June 1986 to serve the 2 May 1986 alias summons. After hearing the motions, the trial court found that the alias summons served on the defendant was issued on 2 May 1986 and that the plaintiff's failure to obtain service of this summons until 5 June 1986 resulted from "excusable neglect." The court nonetheless denied the plaintiff's motion for an extension of time and allowed the defendant's motion to dismiss, noting that Rule 4(c) requires that service of a summons be accomplished within thirty days after its issuance. The trial court specifically stated in its order dismissing the action that, if permitted under Rule 6(b), it would exercise its discretion and enlarge the time for service of the alias summons in question. The trial court concluded, however, that "as a matter of law, Rule 6(b) of the North Carolina Rules of Civil Procedure does not confer upon the Court the authority to permit an enlargement of the time within which service is to be completed pursuant to Rule 4(c) and (d)...." The Court of Appeals, in an unpublished decision, affirmed the trial court's order dismissing this action.

On appeal the plaintiff argues that under Rule 6(b) trial courts have discretionary authority to extend the time provided in Rule 4(c) for service of a summons. Therefore, she argues that the trial court erred in ruling as a matter of law that it was without authority to grant her motion.

[322 N.C. 274] The defendant argues, however, that the plaintiff's contention that Rule 6(b) gives the trial courts broad authority to enlarge the time period provided in Rule 4(c) for the service of a summons is misplaced. Rule 4(c) requires that personal service of a summons be made in cases such as this within thirty days after its issuance. Yet the alias summons in the present case was not served until thirty-four days after its issuance. It is well settled that when a summons is not served within the required thirty days of issuance, it loses its effectiveness and becomes functus officio, Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215 (1943), and service obtained thereafter does not confer jurisdiction over the defendant upon the trial court. Webb v. R.R., 268 N.C. 552, 151 S.E.2d 19 (1966); Hatch v. R.R., 183 N.C. 617, 618, 112 S.E. 529 (1922); Cole v. Cole, 37 N.C.App. 737, 247 S.E.2d 16 (1978). The defendant argues that Rule 6(b) was not intended to give the trial court authority to breathe life back into a summons that has become functus officio, and that there is no authority within the North Carolina Rules of

Page 657

Civil Procedure for the service of a summons after the date therein fixed for its return. Therefore, the defendant concludes that the trial court was correct in ruling that it had no authority to enlarge the time within which the 2 May 1986 alias summons was required to be served. We disagree.

We begin our analysis by noting that the line of authority to the effect that a summons not served within the time prescribed is rendered functus officio was well established long before the adoption of the new Rules of Civil Procedure, which became effective 1 January 1970. E.g., Webb v. R.R., 268 N.C. 552, 151 S.E.2d 19 (1966); Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215 (1943). More importantly, to say that a summons becomes functus officio or legally defunct in such circumstances entirely begs the question presented in this case: whether...

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90 practice notes
  • State v. Steen, No. 141A19
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 18 December 2020
    ...the statute should be interpreted in accordance with its plain meaning. See Lemons v. Old Hickory Council, Boy Scouts of Am., Inc. , 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988). On the other hand, in the event that the relevant statutory language is ambiguous, "judicial construction must ......
  • Justus v. Rosner, No. 255A17
    • United States
    • 21 December 2018
    ...it had no discretion to extend the time for service of a summons, 821 S.E.2d 777 Lemons v. Old Hickory Council, Boy Scouts of Am., Inc. , 322 N.C. 271, 277, 367 S.E.2d 655, 658 (1988). I see no compelling reason for us to depart from this rule here.2 371 N.C. 837 Here, after a jury verdict ......
  • Rosero v. Blake, No. 322A02.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 13 June 2003
    ...no room for judicial construction, and the courts must give it its plain and definite meaning." Lemons v. Old Hickory Council, BSA, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988) (citations omitted). Neither section 50-13.2(a) nor the case in which the Court of Appeals held that the "t......
  • In re Man, No. 09-51791
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — District of South Carolina
    • 2 April 2010
    ...is no room for judicial construction, and the courts must give it its plain and definite meaning." Lemons v. Old Hickory Council, BSA, 322 N.C. 271, 367 S.E.2d 655, 658 (1988). "Ordinary rules of grammar apply when ascertaining the meaning of a statute." Dunn v. Pacific Employers Ins. Co., ......
  • Request a trial to view additional results
90 cases
  • State v. Steen, No. 141A19
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 18 December 2020
    ...the statute should be interpreted in accordance with its plain meaning. See Lemons v. Old Hickory Council, Boy Scouts of Am., Inc. , 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988). On the other hand, in the event that the relevant statutory language is ambiguous, "judicial construction must ......
  • Justus v. Rosner, No. 255A17
    • United States
    • 21 December 2018
    ...it had no discretion to extend the time for service of a summons, 821 S.E.2d 777 Lemons v. Old Hickory Council, Boy Scouts of Am., Inc. , 322 N.C. 271, 277, 367 S.E.2d 655, 658 (1988). I see no compelling reason for us to depart from this rule here.2 371 N.C. 837 Here, after a jury verdict ......
  • Rosero v. Blake, No. 322A02.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 13 June 2003
    ...no room for judicial construction, and the courts must give it its plain and definite meaning." Lemons v. Old Hickory Council, BSA, Inc., 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988) (citations omitted). Neither section 50-13.2(a) nor the case in which the Court of Appeals held that the "t......
  • In re Man, No. 09-51791
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — District of South Carolina
    • 2 April 2010
    ...is no room for judicial construction, and the courts must give it its plain and definite meaning." Lemons v. Old Hickory Council, BSA, 322 N.C. 271, 367 S.E.2d 655, 658 (1988). "Ordinary rules of grammar apply when ascertaining the meaning of a statute." Dunn v. Pacific Employers Ins. Co., ......
  • Request a trial to view additional results

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