Washington County v. Blount

• Decision Date: 20 September 1944
• Docket Number: 92.
• Parties: WASHINGTON COUNTY v. BLOUNT et al.
• Court: North Carolina Supreme Court

31 S.E.2d 374

224 N.C. 438

WASHINGTON COUNTY v. BLOUNT et al.

No. 92.

Supreme Court of North Carolina

September 20, 1944

This is a tax foreclosure proceedings, instituted January 25, 1940.

The sheriff of Washington County served the original summons and a copy of the complaint on the defendants Annie B. Blount and E. R. Blount, on January 27, 1940, by delivering a copy of the summons and a copy of the complaint to each of the aforesaid defendants. Alias summons was issued and served on William Best. S. Pailin was not to be found and was served by publication. No answers were filed.

On April 28, 1940, the clerk of the Superior Court entered an interlocutory judgment against the defendants for unpaid delinquent taxes, in the sum of $387.81, in which judgment said sum was declared a lien on the land described in the complaint and a commissioner was appointed to sell the land to satisfy the lien. The commissioner sold the property on June 17, 1940, to Washington County, the last and highest bidder, for $387.81, which sale was duly confirmed. The commissioner executed a deed to Washington County on July 15 1940, which deed was filed for registration on August 30 1940. Thereafter, by deed dated June 28, 1941, the Board of Commissioners of Washington County, N.C., conveyed the land in controversy to W. Blount Rodman and D. J. Brinkley, which conveyance was filed for registration on August 30, 1941.

The defendants filed a motion in the cause before the clerk of the Superior Court, more than one year after the execution of the commissioner's deed, to set aside the interlocutory judgment, the sale, the decree confirming the sale, and to declare null and void the commissioner's deed and the deed from the Board of Commissioners of Washington County to W. Blount Rodman and D. J. Brinkley, on the ground that the defendants, Annie B. Blount, E. R. Blount and William Best had not been served with summons as required by law, in that the copies of the summons delivered to them by the sheriff of Washington County at the time of the purported service were not dated or signed by the clerk. The respondents, W. Blount Rodman and D. J. Brinkley, and Washington County, filed answers to the motion. The hearing on the motion was held April 27, 1942. The clerk found certain facts, those pertinent to this appeal follows: 'That the copies of the summons served on the defendants, Annie B. Blount, E. R. Blount and William Best, were not signed by the Clerk, nor was the date of the issuance given.'

The attorneys for the respondents moved to amend the copies of the summons served on the defendants; whereupon the Court in its discretion ordered that the copies of the summons served on said defendants, Annie B. Blount, E. R. Blount and William Best, be amended by inserting therein the date of issue and that the clerk of the Superior Court sign the said copies. The relief sought by the defendants was denied. Upon appeal to the Superior Court, his Honor adopted the findings of fact, as found by the clerk of the Superior Court, and likewise ordered the amendments as requested in respondents' motion and denied the motion of the defendants.

The defendants appeal to the Supreme Court, assigning error.

Margaret Johnson and Z. V. Norman, both of Plymouth, for plaintiff.

P. H. Bell, of Plymouth, for defendants.

DENNY Justice.

This appeal turns upon the question whether or not the failure of the clerk of the Superior Court to sign and date the copies of the summons delivered to these appealing defendants was a mere clerical error or one affecting the jurisdiction of the court.

Where the statute requires service of summons by delivery of a copy of the original writ to the defendant, such copy should, as a matter of course, conform exactly to the original, but frequently errors and omissions occur in the preparation of copies and it becomes necessary for the courts to determine the effect of particular clerical errors and omissions. In such cases it seems to be the general rule to disregard a clerical error or an omission where the party served has not been misled. Clerical errors or omissions in the copy of a summons delivered to a defendant will not affect the jurisdiction of the court, when they consist of mere irregularities, such as the 'want of the signature of the officer who issued it, the omission of the date of summons or the failure to endorse thereon the date and place of service,' 50 C.J., Sec. 79, p. 484; 49 Am.Jur., Sec....