Hall v. Lassiter

260 S.E.2d 155 (1979)

44 N.C. App. 23

Charles R. HALL v. R. Haywood LASSITER d/b/a High Point Concrete Products and Richard Lassiter.

No. 7918SC94.

Court of Appeals of North Carolina.

November 20, 1979.

*157 Haworth, Riggs, Kuhn, Haworth & Miller by John Haworth, High Point, for plaintiff-appellant.

Nichols, Caffrey, Hill, Evans & Murrelle by William L. Stocks, Greensboro, for defendants-appellees.

VAUGHN, Judge.

Plaintiff concedes that the summons was not served in compliance with Rule 4(j)(1)a of the Rules of Civil Procedure "[b]y delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . . . ." Plaintiff, nevertheless, suggests that under the philosophy expressed in Wiles v. Construction Co., 295 N.C. 81, 243 S.E.2d 756 (1978), actual notice of the suit cures deficiencies in service of process in the absence of a showing that defendant's opportunity to defend was hampered. In Wiles, the Supreme Court, overruling a long line of its cases, held that where the direction of the summons is to the corporation's registered agent rather than the corporation, and the corporate defendant is named in the complaint and the caption of the summons, the service is not defective even though the summons is not directed to the defendant as required by Rule 4(b). We first note that the defect in Wiles was in the form of the summons and not in the manner in which it was served. Notwithstanding the broad language used by the Court, we do not believe it intended, by judicial decree, completely to abolish the clearly stated statutory requirements for the service of process in favor of some nebulous concept of actual notice.

We conclude that the delivery of the papers to Douglas Lassiter at defendants' place of business instead of defendants' respective residences was not in compliance with the rule, and that jurisdiction over defendants was not thereby obtained. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977); Cole v. Cole, 37 N.C.App. 737, 247 S.E.2d 16 (1978); Annot., 32 A.L.R.3d 112, 172-74 (1970).

The decision in this case, therefore, depends on when the action that was commenced on 23 June 1977 came to an end. Plaintiff contends it was voluntarily dismissed on 1 August 1978 without prejudice to file a new action based on the same claim within one year of the dismissal. See G.S. 1A-1, Rule 41(a)(1). Defendants contend the action, filed 23 June 1977, terminated ninety days after the date summons was issued because of defective service and failure of plaintiff to get either endorsement by the clerk or issuance of alias or pluries summons. See G.S. 1A-1, Rule 4(c), (d), (e), (j).

The paper entitled "Stipulation of Dismissal" filed by plaintiff on 1 August 1978 was not a "stipulation" as it was not "signed by all parties who have appeared in the action." Rule 41(a)(1). Only counsel for plaintiff signed the paper. It is, therefore, more properly a "notice of dismissal." Rule 41(a)(1) (emphasis added) provides in part:

"If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal . . . ."

In Ready Mix Concrete v. Sales Corp., 36 N.C.App. 778, 245 S.E.2d 234 (1978), plaintiff obtained a default judgment in a contract claim arising on 11 August 1973, which was later set aside because the original summons in the action was defective. Alias summons was then issued on 6 October 1976. Defendant moved for dismissal and for summary judgment because the three year statute of limitations on contract actions had run. In reversing the trial judge's denial of defendant's motion, the Court noted that the action was properly commenced within the period of limitations pursuant to Rule 3 but it was discontinued pursuant to Rule 4(e) by the failure to serve defendant properly. Plaintiff in that case *158 thus commenced the action on 6 October 1976, well beyond the statutorily prescribed three year period. The Court also held the trial court could not have by order pursuant to Rule 41(a)(2) dismissed the action without prejudice and allowed plaintiff a reasonable time to file his claim. "Rule 41 does not authorize a party to take a dismissal without prejudice of a previous action barred by the statute of limitations and then refile the action in order to avoid the statute of limitations." 36 N.C.App. at 782, 245 S.E.2d at 236-37.

Because of improper service, under Rule 4(j)(1)a, there was no service on defendants "within 30 days after the date of the issuance of summons" as required by Rule 4(c) and no extension "within 90 days after the issuance of summons" for later service pursuant to Rule 4(d).

"When there is neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action is discontinued as to any defendant not theretofore served with summons within the time allowed." Rule 4(e).

Defendants were not served properly and the action of 23 June 1977 was discontinued pursuant to Rule 4(e) well before plaintiff voluntarily attempted to dismiss the action pursuant to Rule 41(a)(1). Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1974); Lackey v. Cook, 40 N.C.App. 522, 253 S.E.2d 335 (1979). The action was barred by the statute of limitations before plaintiff instituted the new action on 1 August 1978.

For the reasons stated, the judgment is affirmed.

Affirmed.

ERWIN and HILL, JJ., concur.