Plemmons v. Southern Imp. Co.

• Decision Date: 05 May 1891
• Citation: 13 S.E. 188,108 N.C. 614
• Parties: Plemmons v. Southern Imp Co.
• Court: North Carolina Supreme Court

13 S.E. 188

108 N.C. 614

Plemmons v. Southern Imp Co.

Supreme Court of North Carolina

May 5, 1891

Appeal from superior court, Madison county; Whitaker, Judge.

F. A Sondley and T. F. Davidson, for appellant.

Clark J.

The summons commanded the sheriff to summon "A. H. Bronson president of the Southern Improvement Co.," and it was so served. This is legally a summons and service only upon A H. Bronson individually. The superadded words "president of the Southern Improvement Co.," were a mere descriptio personae, as would be the words "Jr." or "Sr.," or the addition of words identifying a party by the place of his residence and the like. Code, § 273, gives the court very great powers of amendment over pleadings, process, and proceedings, "by adding or striking out of the name of a party," etc. It was competent for the court below to amend the summons so as to make the Southern Improvement Company either an additional party defendant, or have substituted it as sole party defendant by at the same time striking out the name of "A. H. Bronson, president," etc.; but it could not bring the Southern Improvement Company in as a party defendant to the action without its consent (either expressed or by entering a general appearance) except by causing the amended summons to be served upon it. The service of summons issued against "A. H. Bronson, president," etc., was not a service upon the corporation, and it cannot, in this short-hand manner, by amendment, be brought into court without service of process. Young v. Rollins, 90 N.C. 134. When additional parties plaintiff are made, or there is a substitution of parties plaintiff, no summons issues, because the plaintiff is the moving party, and comes into court voluntarily. Reynolds v. Smathers, 87 N.C. 24; Jarrett v. Gibbs, 107 N.C. 303, 12 S.E. Rep. 272. If he objects, and is a necessary party, he is made a defendant. Code, § 185. No summons was directed to issue against the corporation, and, the amendment of the summons not having the effect to make it a party without service of process, the company, by counsel appearing specially for the purposes of the motion only, moved to dismiss the proceedings as to the Southern Improvement Company. The court refused the motion, and the said company appealed. It is settled that no appeal lies from a refusal to dismiss an action. Mitchell v. Kilburn, 74 N.C. 483; Foster v. Penry, 77 N.C. 160; Crawley v. Woodfin, 78 N.C....