Roberts v. Coca-Cola Bottling Co. of Asheville, COCA-COLA
| Decision Date | 28 February 1962 |
| Docket Number | No. 94,COCA-COLA,94 |
| Court | North Carolina Supreme Court |
| Parties | Carl Henry ROBERTS v.BOTTLING COMPANY OF ASHEVILLE, Inc. |
Williams, Williams & Morris, by R. R. Williams, Jr., Asheville, for defendant, appellant.
Willson & Riddle, by Robert B. Willson, Asheville, for plaintiff, appellee.
The superior court acquires jurisdiction of a plaintiff by his institution of an action in that court. It acquires jurisdiction of the defendant by the service of the summons and the complaint. However, under certain conditions the plaintiff is not required to file and serve the complaint at the time the summons is issued and served. G.S. § 1-121 provides: '* * * the clerk may * * * on application of plaintiff by written order extend the time for filing complaint to a day certain not to exceed twenty (20) days, * * * said application and order shall state the nature and purpose of the suit.'
The delivery of copies of the summons and order extending time for the delayed filing, and the complaint, when filed, complete the service and give the court jurisdiction of the defendant. Until the cause is at issue the clerk acts for the court. His powers and duties are not to be confused with those of the judge who has wide discretionary powers of amendment not given to the clerk. G.S. § 1-163; Modern Electric Co. v. Dennis, 255 N.C. 64, 120 S.E.2d 533; Sawyer v. Cowell, 241 N.C. 681, 86 S.E.2d 431; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785.
The defendant's first motion to quash the summons and dismiss the action for failure of the plaintiff's application and the clerk's order to state the nature and purpose of the action cannot be sustained. The intent of the statute was to require the plaintiff to alert the defendant by giving preliminary notice of the nature of the claim and the purpose of the suit, and that the ultimate factual averments would follow in a complaint later to be filed. The application and order in this case appear to be sufficient for the intended purpose of alerting the defendant that a complaint would be filed alleging damages in the sum of $100,000 as a result of the defendant's actionable negligence. The question is discussed in Whitehurst v. Anderson, 228 N.C. 787, 44 S.E.2d 358.
After the plaintiff actually filed the complaint, a second motion to dismiss was interposed upon the ground the purpose and nature of the suit were limited by the application and order to damages resulting from negligence; whereas, the complaint stated a cause of action based on breach of implied warranty. However, a plaintiff may join two causes of action in the same complaint--one in tort, the other in contract--if the two causes arise out of the same transaction or are connected with the same subject of action. G.S. § 1-123 (1); Wrenn v. Graham, 236 N.C. 719, 74 S.E.2d 232; Pressley v. Great Atlantic & Pacific Tea Co., 226 N.C. 518, 39 S.E.2d 382; Richmond Cedar Works v. J. L. Roper Lumber Co., 161 N.C. 603, 77 S.E. 770; Cook v. Smith, 119 N.C. 350, 25 S.E. 958. The plaintiff, therefore, could have alleged two separate causes of action--one in tort for...
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Sharpe v. Pugh, 523
...the purpose of the suit, and that the ultimate factual averments would follow in a complaint later to be filed.' Roberts v. Coca-Cola Bottling Co., 256 N.C. 434, 124 S.E.2d 105. The statement as to 'the nature and purpose' of the action set forth in the application for extension of time to ......
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...preliminary notice of the nature of the claim and the purpose of the suit" through its filings with the court. Roberts v. Coca-Cola Bottling Co., 124 S.E.2d 105, 107 (N.C. 1962). 4. In light of this inaccurate and distracting suggestion, the court is unwilling to accept Willard's other sugg......
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