Sink v. Schafer

• Decision Date: 14 January 1966
• Docket Number: No. 540,540
• Citation: 266 N.C. 347,145 S.E.2d 860
• Parties: Henry H. SINK, Ancillary Administrator CIT of the Estate of Noble C. Cartwright, v. Forrest J. SCHAFER.
• Court: North Carolina Supreme Court

Page 860

145 S.E.2d 860

266 N.C. 347

Henry H. SINK, Ancillary Administrator CIT of the Estate of Noble C. Cartwright, v. Forrest J. SCHAFER.

No. 540.

Supreme Court of North Carolina.

Jan. 14, 1966.

Teague, Johnson & Patterson, by Robert M. Clay, Raleigh, for plaintiff appellee.

Smith, Leach, Anderson & Dorsett, Raleigh, for Forrest J. Schafer, Jr., defendant appellant.

HIGGINS, Justice.

The record discloses the caption in the summons designated Forrest J. Schafer, as the defendant. The body of the summons directed the Sheriff to serve Forrest J. Schafer, Jr. The Sheriff served the summons on the Commissioner of Motor Vehicles as defendant's statutory process agent for the purpose of bringing him into court in this wrongful death action resulting from his negligent operation of a motor vehicle upon a North Carolina public highway. The Commissioner of Motor Vehicles mailed the process to Forrest J. Schafer, Jr., who seeks to quash the service upon the sole ground that the suffix, Jr., was omitted in the caption of the summons. The appellant is alleged to have been the driver of the vehicle causing the death of the intestate. Copies of the summons and complaint were served on this Commissioner of Motor Vehicles and by him transmitted to the appellant. The service was complete.

The suffix, Jr., is no part of a person's name. It is a mere descriptio personae. State v. Best, 108 N.C. 747, 12 S.E. 907. 'Names are to designate persons, and, where the identity is certain, a variance in the name is immaterial.' Patterson v. Walton, 119 N.C. 500, 26 S.E. 43; Clawson v. Wolfe, 77 N.C. 100; 71 C.J.S. Pleading § 36b.

Judge Bailey's order denying the motion to quash the summons is sustained by the great weight of authority. This the appellant admits in his brief. Quaere: Does the caption of the summons designating Forrest J. Schafer, or the body of the process giving the correct designation, Forrest J., Schafer, Jr., control? In either event, the order of the Superior Court of Wake County is correct and is

Affirmed.