Russell v. Bea Staple Mfg. Co., 689

• Decision Date: 04 February 1966
• Docket Number: No. 689,689
• Citation: 266 N.C. 531,146 S.E.2d 459
• Court: North Carolina Supreme Court
• Parties: Jim RUSSELL and Seymour Ett, t/a Russett Sales Company, v. BEA STAPLE MANUFACTURING COMPANY, Incorporated.

Page 459

146 S.E.2d 459

266 N.C. 531

Jim RUSSELL and Seymour Ett, t/a Russett Sales Company, v. BEA STAPLE MANUFACTURING COMPANY, Incorporated.

No. 689.

Supreme Court of North Carolina.

Feb. 4, 1966.

Haworth, Riggs, Kuhn & Haworth, by John Haworth, and Don G. Miller, High Point, for defendant appellant.

Morgan, Byerly, Post & Keziah, by W. Dan Herring, High Point, for plaintiff appellee.

PARKER, Justice.

G.S. § 1-89 reads in relevant part: 'It [the summons] must be returnable before the clerk and must command the sheriff or other proper officer to summon the defendant, or defendants, to appear and answer the complaint of the plaintiffs within thirty (30) days after its service upon defendant, or defendants * * *.' (Emphasis ours.)

The original summons commanded the sheriff 'to summon Clayton Eddinger, Kearns Warehouse, 518 Hamilton Street, High Point, North Carolina, local agent for Bea Staple Manufacturing Company, Incorporated, defendant(s) above named,' and was so served. The copy of the summons delivered to Clayton Eddinger commanded the sheriff 'to summon Clayton Eddinger, Kearns Warehouse, 518 Hamilton Street, High Point, North Carolina, defendant(s) above named.'

Plemmons v. Southern Improvement Co., 108 N.C. 614, 13 S.E. 188, is directly in point. In that case the Court said:

'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. [Young v. Barden, 90 N.C. 424]. 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.'

The Court held that this did not make Southern Improvement Company a party to the case.

In Jones v. Vanstory, 220 N.C. 582, 157 S.E. 867, the plaintiff issued summonses to various counties for C. M. Vanstory, J. E. Vanhorn, Mrs. Emma B. Siler, W. C. Wicker, Lee A. Folger and others, who were designated in the summons 'trustees' of Masonic and Eastern Star Home. The Court held that the statutory provisions as to service of summons on private corporations must be observed, and where individuals, directors of Masonic and Eastern Star Home, Inc., a North Carolina corporation, are served with process as trustees, it will not be effectual as service on the corporation, but only on the individuals named, and cites as authority for its holding Plemmons v. Southern Improvement Co., supra.

To the same effect are Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; McLean v. Matheny, 240 N.C. 785, 84 S.E.2d 190; and statement in McIntosh, North Carolina Practice and Procedure, 2d ed., § 864 at p. 448. See also Edwards v. Scott & Fetzer, Inc., 154 F.Supp. 41, 45 (U. S. District Court, M.D. North Carolina).

Plaintiffs in their brief state that Troy Lumber Co. v. State Sewing Machine Corp., 233 N.C. 407, 64 S.E.2d 415, 'is in point and should control this controversy.' With that statement we do not agree. We have examined the original case on appeal in that action, which contains a copy of the summons. The summons commands the sheriff of Forsyth County 'to summon State Sewing Machine Corporation'; this is not set forth in the Court's opinion in that case.

The original summons commanded the sheriff 'to summon Clayton Eddinger, Kearns Warehouse, 518 Hamilton Street,...