Philpott v. Kerns
| Decision Date | 10 April 1974 |
| Docket Number | No. 42,42 |
| Citation | 203 S.E.2d 778,285 N.C. 225 |
| Parties | Viola H. PHILPOTT v. Allen F. KERNS and Jean Kerns. |
| Court | North Carolina Supreme Court |
Pearson, Malone, Johnson & DeJarmon by W. G. Pearson, II, and W. W. Perry, Durham, for plaintiff-appellant.
Haywood, Denny & Miller by George W. Miller, Jr., Durham for defendant-appellees.
The Court of Appeals correctly held that the court acquired no jurisdiction over defendants by the service of the summons issued in this case upon the Commissioner of Motor Vehicles. Under G.S. § 1--105 (1973 Supp.) in any action for damages against a nonresident which grows out of his operation of a motor vehicle upon the public highways of this State summons may be served upon the nonresident by leaving a copy thereof with the Commissioner of Motor Vehicles and transmitting a copy to the defendant by registered mail. The required contents of a summons are set out in G.S. § 1A--1, Rule 4(c), and one of the essential requirements is that the summons 'shall be directed to the defendant or defendants.'
This summons was patently defective in that it was not directed to defendants but to the Commissioner of Motor Vehicles, who was 'summoned and notified to appear and answer' the complaint within thirty days after service. The contents of this summons do not differ materially from the one which we considered in Distributors v. McAndrews, 270 N.C. 91, 153 S.E.2d 770 (1967). In Distributors we said:
'The provisions (of G.S. 1--105) are in derogation of the common law and must be strictly complied with. . . . 'Actual notice given in any manner other than that prescribed by the statute cannot supply constitutional validity to it or to service under it. " Id. at 94, 153 S.E.2d at 772 . . .
G.S. § 1--105 as presently written became effective 1 January 1970. However, differences in the wording of the statute before and after that date are not material here. The decision in Distributors states the law applicable to the summons in this case. There is, however, a material difference between the facts in Distributors and the facts of this case.
Defendants in this case, before asserting their defense that the court had obtained no jurisdiction over their persons by answer or pre-answer...
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Harris v. Maready
...that actual notice given in a manner other than that prescribed by statute cannot supply constitutional validity, Philpott v. Kerns, 285 N.C. 225, 203 S.E.2d 778 (1974), we have also found guidance from Judge John J. Parker who stated that: A suit at law is not a children's game, but a seri......
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Hoyle v. United Auto Workers Local Union, Civil No. 3:04CV518-H.
...statutes, even where it is clear, as here, that a defendant has received actual notice of the action. See, e.g., Philpott v. Kerns, 285 N.C. 225, 228, 203 S.E.2d 778, 780 (1974) (actual notice not a substitute for valid service in accordance with the statute); Stack v. Union Reg'l Mem'l Med......
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Stack v. Union Regional Mem. Med. Center
...with or there is no valid service.'" (quoting Lowman v. Ballard, 168 N.C. 16, 18, 84 S.E. 21, 22 (1915))); Philpott v. Kerns, 285 N.C. 225, 228, 203 S.E.2d 778, 780 (1974) (finding that actual notice is not a substitute for valid service in accordance with the statute); Roshelli v. Sperry, ......
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Shelton v. Fairley
...of defendant as a party being sued. Id. at 544, 319 S.E.2d at 917. In so doing it specifically did not overrule Philpott v. Kerns, 285 N.C. 225, 203 S.E.2d 778 (1974), which "held that actual notice given in a manner other than that prescribed by statute cannot supply constitutional validit......