Williams v. Burroughs Wellcome Co.

• Decision Date: 06 May 1980
• Docket Number: No. 783SC394,783SC394
• Citation: 265 S.E.2d 633,46 N.C.App. 459
• Court: North Carolina Court of Appeals
• Parties: Rev. Elbert WILLIAMS v. BURROUGHS WELLCOME CO. and James Rostar.

Page 633

265 S.E.2d 633

46 N.C.App. 459

Rev. Elbert WILLIAMS v. BURROUGHS WELLCOME CO. and James Rostar.

No. 783SC394.

Court of Appeals of North Carolina.

May 6, 1980.

Braswell & Taylor by Roland C. Braswell, Goldsboro, for plaintiff-appellee.

Speight, Watson & Brewer by W. H. Watson, Greenville, for defendants-appellants.

PARKER, Judge.

The issue presented on this appeal is whether the trial court properly denied defendant corporation's motion to dismiss on the grounds of insufficiency of service of process.

Where a civil action is commenced by issuance of summons and an order extending the time to file a complaint, the summons and the court's order are to be served in accordance with the provisions of G.S.1A-1, Rule 4. G.S. 1A-1, Rule 3. G.S. 1A-1, Rule 4 provides in pertinent part:

(j) Process manner of service to exercise personal jurisdiction. In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-754, the manner of service of process shall be as follows:

(6) Domestic or Foreign Corporation. Upon a domestic or foreign corporation:

a. By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office . . .

Under G.S. 1-75.10(1)(a), where the defendant appears in the action and challenges the service of summons by the sheriff of the county where the defendant was found, proof of service shall be "by the officer's certificate thereof, showing place, time and manner of service." When the return upon its face shows legal service by an authorized officer, that return is sufficient, at least prima facie, to show service in fact. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977); Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239 (1957).

The officer's return in the present case stated that the summons and order were served on Burroughs Wellcome Co. on 7 October 1977 "by leaving a copy with Carol Allen at the following place: Burroughs Wellcome Co., Greenville, N.C." Defendant contends that the return is defective on its face in that it fails to recite in what capacity, if any, Carol Allen acted on behalf of the corporate defendant when service was purportedly made. Assuming that this return is incomplete in that it fails to specify in detail the agency of Carol Allen and the manner in which service upon her constituted compliance with G.S. 1A-1, Rule 4(j)(6), the significant factor in determining whether the court acquired jurisdiction over the corporate defendant here is whether the manner of service itself, rather than the return of the officer showing such service, complied with the applicable statute. "It is the service of summons and not the return of the officer that confers jurisdiction." State v. Moore, 230 N.C. 648, 649, 55 S.E.2d 177, 178 (1949). Although G.S. 1-75.10 provides that the officer's return shall constitute proof of service in fact, and the better practice is for officers to make their return specifying in detail upon whom and in what manner process was served, we do not construe that statute as precluding the plaintiff, in a case where the return on its face does not affirmatively disclose facts showing nonservice, from offering additional proof to establish that service was made as required by law. See, Crawford v. Bank, 61 N.C. 136 (1867). Alternatively, the sheriff may be permitted to amend the proof of service unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued. G.S. 1A-1, Rule 4(i).

Proceeding to the question of the sufficiency of the service itself, we consider whether the court's findings of fact support its conclusion that defendant Burroughs Wellcome Co. was properly served in accordance with the provisions of G.S. 1A-1, Rule 4(j)(6). The validity of service in the present case must rest upon compliance with that portion of G.S. 1A-1, Rule 4(j)(6) which permits delivery of summons "to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office." The trial court concluded as a matter of law that the summons "was, in fact, served upon Burroughs Wellcome Co. in that Carol Allen was on the 7th day of October, 1977, pursuant to N.C.G.S. 1A-1, Rule 4(j)(6), a person apparently in charge of the office of a managing agent of Burroughs Wellcome Co." This conclusion is based on Findings of Fact Nos. 4 and 5 as follows:

4. That James Rostar did not on the 7th day of October, 1977, reside at Burroughs Wellcome Co. but was an employee in a management position of Burroughs Wellcome Co.;

5. That Billy Tripp, Deputy Sheriff of Pitt County, went to Burroughs Wellcome Co. on the 7th day of October, 1977, and upon inquiry, was told by Carol Allen that the Plant Manager of Burroughs Wellcome Co. was not there and that neither was James Rostar and that in the absence of the Plant Manager and James Rostar that the said Carol Allen was in charge of the office at Burroughs Wellcome Co.

Defendant has assigned error to Finding of Fact No. 5 on the ground that it is unsupported by competent evidence in the record. The corporation contends that the testimony of the deputy sheriff that Carol Allen told him at the time he served the summons and order that "she was in charge of the office" in the absence of the personnel officer was inadmissible hearsay, upon which Finding of Fact No. 5 cannot be based. This contention is without merit. G.S. 1A-1, Rule 4(j)(6)(a) does not require that the person upon whom summons is served be in fact in charge of the office of the officer, director or managing agent of the corporation, merely that the person be "apparently in charge". Evidence presented at the hearing disclosed that Carol Allen worked in the Personnel Department as a secretary and that James Rostar, personnel manager of the corporate...