Smith v. Starnes

Justice Meyer

dissenting.

I dissent. There are two extraordinarily grievous faults in the majority opinion. First, Rule 4 of the North Carolina Rules of Civil Procedure was applied incorrectly. The rule provides for service of summons by designated methods. Our cases have consistently declared: “ ‘[WJhere a statute provides for service of summons or notices in the progress of a cause by certain persons or by designated methods, the specified requirements must be complied with or there is no valid service.’ ” Guthrie v. Ray, 293 N.C. 67, 69, 235 S.E. 2d 146, 148 (1967) (quoting S. Lowman v. Ballard & Co., 168 N.C. 16, 18, 84 S.E. 21, 22 (1915)). Second, I believe that the correct interpretation of Rule 4 requires that delivery of the summons to the sheriff within thirty days of its issuance must be accomplished in order to allow the summons to later serve as a basis for the issuance of an alias or pluries summons. Deaton v. Thomas, 262 N.C. 565, 138 S.E. 2d 201 (1964).

Rule 4(a) clearly provides that:

The complaint and summons shall be delivered to some proper person for service. In this State, such proper person shall *620be the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons.

N.C.G.S. § 1A-1, Rule 4(a) (1983) (emphasis added).

Rule 4(j) 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 as provided in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:
(1) Natural Person. . . .:
a. By 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; or
b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept services of process or by serving process upon such agent or the party in a manner specified by any statute.
c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.

N.C.G.S. § 1A-1, Rule 4(j) (1983).

The above rules provide three methods by which a valid service of process may occur. In this case, plaintiffs counsel never attempted service by any one of the three statutorily authorized methods. The “attempted” service here was merely the sending by regular mail of a copy of the summons to defendant’s counsel in a letter requesting that defendant accept service. Plaintiff s counsel made the following answer in response to an interrogatory:

The Summons issued August 6, 1982, was taken out, and an additional Acceptance of Service was prepared and forward*621ed to the attorney for the Defendant Johnnie Wade Starnes, who indicated he would have his client accept service. The same was returned some weeks later, indicating that the Defendant could not be located, and service would have to be had another way. Thereupon, the attorney for Plaintiff attempted to find out where the Defendant was living and/or working and was able to obtain this information many months later.

Though, if successful, this method would have effectuated the equivalent of service and made any attempt at actual service unnecessary, it is by no means an attempt to serve the summons by any one of the statutorily authorized methods. Because plaintiffs attorney failed to comply with Rule 4, the original summons was discontinued thirty days after its issuance.

Although the majority states that “plaintiff attempted to have defendant accept service within the time provided in the statute,” the majority fails to explain what happened to the original summons after defendant’s counsel returned it or why what was done with it met any statutory requirement.

Even the majority should concede that in order for the original summons to serve as the basis for an alias and pluries summons, there must be some attempt at delivery by one of the statutory methods and that such was not accomplished in this case. Without an attempted service, the summons expires and any later endorsements by the clerk constitute the filing of the action as of the date of each respective endorsement. N.C.G.S. § 1A-1, Rule 4(a) and (b) (1983).

The North Carolina Rules of Civil Procedure must be strictly adhered to in order to preserve the integrity of our system for service of process. The purpose behind Rule 4 in North Carolina is “ ‘to provide the mechanisms for bringing notice of the commencement of an action to defendant’s attention and to provide a ritual that marks the court’s assertion of jurisdiction over the lawsuit.’ ” Wiles v. Construction Co., 295 N.C. 81, 84, 243 S.E. 2d 756, 758 (1978) (quoting Wright & Miller, Federal Practice and Procedure: Civil § 1063, at 204 (1969)).

The record reveals that the defendant’s telephone number was continuously listed in the Lexington telephone book from 6 *622August 1982 until July 1983 and that defendant has continuously worked at PPG Industries since 1977. Moreover, it must be stressed that when plaintiff finally delivered the fifth summons to the Davidson County Sheriff, the defendant was served within four days. This relatively immediate service, once plaintiff finally made a statutorily authorized attempt, suggests that had plaintiff attempted service by this or any other statutorily authorized manner within thirty days of the issuance of the summons, defendant would have been promptly notified that an action had been commenced against him. The provision of adequate and timely notice to a defendant of the commencement of an action against him and the simultaneous assertion of personal jurisdiction over him are the bases of Rule 4. The rule was not enacted for the convenience of parties causing summonses to be issued; it is structured around the notion of fair play and timely notice to adverse parties. Mullane v. Central Hanover Bank, 339 U.S. 306, 94 L.Ed. 865 (1950). See also Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E. 2d 570 (1966).

I am astonished that the majority would overrule Adams v. Brooks, 73 N.C. App. 624, 327 S.E. 2d 19 (1985). In that case, plaintiffs lawyer had summons issued and held it in his desk for over two years, never attempting to deliver a copy to the sheriff or to the defendant by any authorized method of Rule 4(j)(l)(a), (b), or (c). In the interim, plaintiffs attorney requested and received sixteen extensions. Finally, two and one-half years later, the attorney delivered the summons to a sheriff. When finally placed in the hands of the sheriff for service, the summons was served within six days. The statute of limitations would have been tolled for more than two years. The court in Adams held that plaintiffs failure to ever deliver summons to any sheriff prior to the first endorsement caused the action to discontinue thirty days after issuance. The holding in Adams is correct. The practicing bar will no doubt be shocked to learn that such conduct as was practiced in Adams is now acceptable.

My personal belief is that the only way that an unserved document may act as the basis for an alias or pluries summons is by accomplishing delivery to the sheriff within the statutory time period and obtaining a return from him. Otherwise, a plaintiff could continue a chain of endorsements or alias and pluries summonses and be allowed to keep a case alive indefinitely by con*623tinuously requesting extensions without any attempt at service by the sheriff as intended by the legislature. In the case at bar, the summons in question had expired for lack of effective renewal, and the later endorsements by the clerk constituted the filing of a new cause of action already barred by the statute of limitations.

Chief Justice Branch joins in this dissenting opinion.