Williams v. Bray, 684

• Decision Date: 06 March 1968
• Docket Number: No. 684,684
• Citation: 159 S.E.2d 556,273 N.C. 198
• Parties: Marie Moose WILLIAMS, Plaintiff, v. Carl Wayne BRAY, Defendant.
• Court: North Carolina Supreme Court

Page 556

159 S.E.2d 556

273 N.C. 198

Marie Moose WILLIAMS, Plaintiff, v. Carl Wayne BRAY, Defendant.

No. 684.

Supreme Court of North Carolina.

March 6, 1968.

Max D. Ballinger, Greensboro, for plaintiff.

Jordan, Wright, Henson & Nichols and William L. Stocks, Greensboro, for defendant.

BRANCH, Justice.

Appellant assigns as error the failure of the trial judge to make findings of fact relating to his motion to dismiss.

In the case of J. A. Jones Construction Co. v. Local Union 755, etc., of Electrical Workers Union, 246 N.C. 481, 98 S.E.2d 852, the defendant made motion to dismiss the action on the ground of invalid service. The trial judge heard evidence on the motion, found no facts, and denied and overruled the motion. Defendant did not request findings of fact upon its motion to dismiss. Overruling defendant's assignment of error in respect to the motion to dismiss, this Court stated:

'* * * There is no statute which required Judge Sharp to find the facts on this 'motion to dismiss and special demurrer,' and in the absence of a request that findings of fact be made, 'it is presumed that the judge, upon proper evidence, found facts sufficient to support his judgment.' Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287, 288.'

See also Supplement, Vol. 1 Strong's N.C. Index, Appeal and Error, § 22, and the cases cited thereunder.

Here, appellant made no request for findings of fact. The evidence heard by the trial judge was uncontradicted. By authority of cases above cited, appellant's assignment of error as to failure of the trial judge to make findings of fact is overruled.

Appellant contends that his motion to vacate and set aside the original summons was erroneously denied. This assignment of error presents the question of whether the original summons was Issued.

A civil action is commenced by the issuance of summons, G.S. § 1--88, and the date it bears is prima facie evidence of the date of issuance. G.S. § 1--88.1. Such summons must be served by the sheriff to whom it is addressed within twenty days after the date of its issue; and if not served within twenty days after the date of its issue upon every defendant, it must be returned by the officer holding the same for service to the clerk of court issuing the summons, with notation thereon of its nonservice and the reasons therefor. G.S. § 1--89.

This Court has many times considered the meaning of the word 'issue' in relation to summons as affecting commencement of actions. A review of some of these cases is helpful in considering the matters decisive of this appeal.

In the case of Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912, the Court considered when a summons was issued in connection with a plea of the statute of limitations as a bar to the action. The Court stated:

'The presumption is that it (summons) was issued at the time it bears date, and the burden is on defendant to show that it did not. * * * (Emphasis ours.)

'An action is commenced by issuing a summons. Code, § 199. And an action is commenced when a summons is issued against a defendant. Id., § 161. This involves the question as to what is meant by the word 'issue,' and we are of the opinion that it means going out of the hands of the clerk, expressed or implied, to be delivered to the sheriff for service. If the clerk delivers it to the sheriff to be served, it is then issued; or if the clerk delivers it to the plaintiff, or some one else, to be delivered by him to the sheriff, this is an issue of the summons; or, as is often the case, if the summons is filled out by the attorney of plaintiff, and put in the hands of the sheriff. This is done by the implied consent of the clerk, and, in our opinion, constitutes an issuance from the time it is placed in the hands of the sheriff for service. But a summons simply filled up and lying in the office of an attorney would not constitute an issuing of the summons, as provided for in The Code.'

The facts in the case of McClure v. Fellows, 131 N.C. 509, 42 S.E. 951, show that summons was filled out and signed by the clerk, but remained in the office of the clerk and were never issued to the sheriff or to any one for him. An order of publication of summons and of a warrant of attachment was duly signed by the clerk, and the same was duly published. Defendants entered a special appearance and moved to vacate the attachment upon the ground that No summons had issued. The trial judge overruled the motion. Holding that the trial judge erred, this Court stated:

'The summons was not Issued. It did not pass from the hands of the clerk. It was never delivered to the sheriff, nor to any one for him, expressly or impliedly. Therefore it was never issued. Webster v. Sharpe, 116 N.C. 466 (at page 471) (21 S.E. 912). It was in process of issuance, and had it been delivered to the sheriff, or to some one for him, its issuance would have then become complete, and been in force and of effect from the time of the filling out and dating by the clerk.'

In the case of Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215, this Court in considering the issuance and service of summons, stated:

'It seems clear that the rule prescribed by these statutes is that in order to bring a defendant into court and hold him bound by its decree, in the absence of waiver or voluntary appearance, a summons must be issued by the clerk and served upon him by the officer within ten days after date of issue, and that if not served within that time the summons must be returned by the officer to the clerk with proper notation. Then, if the plaintiff wishes to keep his case alive, he must have an Alias summons issued. In the event of failure of service within the time prescribed, the original summons loses its vitality. It becomes Functus officio. There is no authority in the statute for the service of that summons on the defendant after the date therein fixed for its return, and if the plaintiff desires the original action continued he must cause Alias summons to be issued and served.'

Defendant relies heavily on the case of Deaton v. Thomas, 262 N.C. 565, 138 S.E.2d 201, where Thomas, on 3 April 1963, had summons issued to the sheriff of Mecklenburg County by the deputy clerk of the Superior Court of Gaston County against Deaton and another. The Mecklenburg County sheriff made his return thereof on 17 April 1963 to the effect that Deaton was not to be found in Mecklenburg County. Thomas filed complaint on 23 April 1963 and was allowed ten additional days for service. An order was entered 23 April 1963 on the original summons extending the time of service of the summons until 13 May 1963. The order and summons were not sent to the sheriff of any county and no attempt was made to serve the summons; instead, counsel for Thomas took the summons from the clerk's office and kept it in his possession until 20 May 1963, at which time he took the original summons and order to the clerk, who endorsed a 20-day extension on the summons, dating from 20 May 1963. The summons as extended was delivered to counsel for Thomas and kept in his possession without delivery to anyone. Time for service of the summons and complaint was purportedly extended to 1 August 1963 for 20 days and was sent to the sheriff of Mecklenburg County on 2 August 1963 and served on Deaton on 3 August 1963.

Deaton commenced his action in the Superior Court of Mecklenburg County against Thomas on 5 July 1963. Summons was sent to the sheriff of Gaston County on 9 July 1963 and duly served on Thomas the same day. A duly verified complaint, filed 19 July 1963, and order of service were served on Thomas on 22 July 1963.

In his answer Thomas pleaded the pendency of his action instituted in Gaston County Superior Court on 3 April 1963 in bar of Deaton's right to maintain his action. This Court, affirming the lower court's decision which overruled the plea in abatement, stated:

'* * * when the order was entered on the original summons on 23 April, 1963, extending the time in which to serve the summons until 13 May 1963, the original summons became Functus officio at the...