Smith v. Starnes , 317 N.C. 613 ( 1986 )

FRYE, Justice.

This cause of action arose out of a 7 August 1980 automobile accident in which plaintiffs intestate was killed instantly and plaintiffs vehicle was severely damaged. Suit was duly commenced by the filing of a complaint and the issuance of a summons on 6 August 1982.¹ On 13 August 1982, Mr. Armentrout, plaintiffs counsel, mailed the original summons and a copy of the complaint to defendant’s counsel and requested that counsel have defendant sign an enclosed acceptance of service. On 23 September 1982, defendant’s counsel returned the complaint and summons by letter and stated that he had been unable to locate defendant and that service would have to be executed in another manner.

Plaintiffs attorney obtained alias or pluries summonses on 4 November 1982, 2 February 1983, 2 May 1983, and 22 July 1983. Neither the original summons nor the November, February or May alias or pluries summonses were ever delivered to the Davidson County Sheriff for service. The 22 July summons was delivered to the sheriff and served on defendant on 26 July 1983.

The trial court granted defendant’s motion for summary judgment on the grounds that plaintiff s action was barred by the two-year statute of limitations.²

In affirming the decision of the superior court, the Court of Appeals held that plaintiffs failure to deliver the summons to the Davidson County Sheriff for service within thirty days of its issuance caused the summons to lose its “vitality,” and therefore the summons could not serve as a basis for the issuance of an alias or pluries summons. Thus, plaintiffs action discontinued 5 September 1982 because service was not had on defendant within thirty days after the summons was issued (6 August 1982). The Court of Appeals further held that the subsequent issuance of the alias or pluries summonses commenced the action anew on the date of each of the summons. When the last alias or pluries summons was issued and delivered to the sheriff, the two-year statute of limitations had run, thus effectively barring plaintiffs action. The Court of Appeals stated:

Though the action was timely instituted and the statute of limitations was tolled for a time thereby, plaintiffs failure to get the original summons into the hands of a sheriff or other process officer caused the action to discontinue.

Rule 4(a) of the N.C. Rules of Civil Procedure requires that after an action has been commenced and a summons has been issued ‘[t]he complaint and summons shall be delivered to some proper person for service.’ This was not done and the summons lost its vitality when the period passed when it could have been delivered to a sheriff or process officer for possible service on the defendant. That period was ‘30 days after the date of the issuance of summons,’ since Rule 4(c) provides that the service of the summons must be made within that time, if at all. Though an action in which the summons is unserved can continue in existence beyond 30 days after the date the summons was issued, for it to do so two things must happen according to Rules 4(c) and (d) of the N.C. Rules of Civil Procedure. First, the unserved original summons must be returned to the court by the officer it was delivered to with an explanation as to why it was not served. Second, the original summons must be supplemented by either a timely endorsement thereto or a timely sued out alias or pluries summons .... Thus, under the facts recorded the action discontinued on 5 September 1982 and the statute of limitations had long since run when defendant was eventually served with process several months later.

74 N.C. App. at 308-09, 328 S.E. 2d at 22.

Plaintiff contends that the Court of Appeals erred in holding that under Rule 4 a summons not delivered to the sheriff within thirty days after it is issued may not serve as a basis for the issuance of an alias or pluries summons. Plaintiff argues that since her complaint and summons were timely filed and the issuance of the alias or pluries summons tolled the applicable statute of limitations, the trial judge erred in granting defendant’s motion for summary judgment. For the reasons stated in this opinion, we agree with the plaintiffs contention, and accordingly reverse the decision of the Court of Appeals.

There is no evidence or contention in this case that the complaint and summons were filed or issued in bad faith or that they were interposed for delay or otherwise subject to dismissal as a sham and false pleading pursuant to Rule 11(a) of the North Carolina Rules of Civil Procedure. See Estrada v. Burnham, 316 N.C. 318, 341 S.E. 2d 538 (1986). Nor are we presented with a motion for involuntary dismissal for failure of the plaintiff to prosecute an action pursuant to Rule 41(b). We are presented, rather, with a simple question of whether a duly issued summons not served or delivered to the sheriff for service within thirty days of its issuance may nevertheless serve as the basis for an alias or pluries summons so as to toll the statute of limitations.

N.C.G.S. § 1A-1, Rule 4,³ provides in pertinent part:

(a) Summons — Issuance; Who May Serve. Upon the filing of the complaint, summons shall be issued forthwith, and in any event within five days. The complaint and summons shall be delivered to some proper person for service. In this State, such proper person shall be the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons . ... A summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so. The date the summons bears shall be prima facie evidence of the date of issue.

(c) Summons — Return. Personal service or substituted personal service of summons as prescribed by Rule 4(j)(l)a and b, must be made within 30 days after the date of the issuance of summons .... But failure to make service within the time allowed shall not invalidate the summons. If the summons is not served within the time allowed upon every party named in the summons, it shall be returned immediately upon the expiration of such time by the officer to the clerk of the court who issued it with notation thereon of its non-service and the reasons therefor as to every such party not served, but failure to comply with this requirement shall not invalidate the summons.

(d) Summons — Extension; Endorsement, Alias and Pluries. When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:

(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.

(e) Summons — Discontinuance. 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. Thereafter, alias or pluries summons may issue, or an extension be endorsed by the clerk, but, as to such defendant, the action shall be deemed to have commenced on the date of such issuance or endorsement.

(Emphases added.)

We do not believe that a correct interpretation of Rule 4 requires delivery of the summons to the sheriff within thirty days of its issuance in order that the summons may later serve as a basis for the issuance of an alias or pluries summons. Although section (a) provides that the complaint and summons shall be delivered to the sheriff of the county where process is to be made, the rule provides no sanction for a party’s failure to make such a delivery. Section (c) expressly provides that the sheriffs failure to make service within the time allowed under the statute shall not invalidate the summons. Nor will the sheriffs failure to return an unserved summons invalidate the summons. N.C.G.S. § 1A-1, Rule 4(c) (1983). Section (e) controls in determining when an action is discontinued. It provides that a summons is discontinued as to any defendant not served within the time allowed when there is “neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d) . . . .” There is no provision in section (e) concerning a party’s failure to deliver the summons to the sheriff for service. In light of the clear language of Rule 4(e) on the discontinuance of a summons, there is no justification for construing the rule to require delivery of the summons to the sheriff within thirty days of its issuance to keep the summons alive.

In the case at hand, it is clear that plaintiffs summons had not been discontinued prior to being served on defendant. Plaintiffs complaint and summons were filed 6 August 1982 —before the expiration of the two-year statute of limitations. Although plaintiffs summons was never delivered to the sheriff for service, plaintiff attempted to have defendant accept service within the time provided in the statute. When this failed, plaintiff sued out alias or pluries summonses in accordance with Rule 4(d)(2). Under the language of Rule 4, plaintiff was successful in keeping her original summons alive, and therefore the trial judge erred in granting defendant’s motion for summary judgment.

In its opinion, the Court of Appeals cited Adams v. Brooks, 73 N.C. App. 624, 327 S.E. 2d 19, disc. rev. denied, 313 N.C. 596, 332 S.E. 2d 177 (1985), as authority for its decision in the instant case. In Adams the Court of Appeals held that the plaintiffs summons “could not be used as a basis for an extension of time for service” since the summons was not delivered to the sheriff for service on defendant within thirty days of its issuance. Id. at 627, 327 S.E. 2d at 21. According to the court, the summons expired thirty days after it was issued and later endorsements resulted in the filing of the action anew as of the date of each endorsement. The court in Adams cited no direct authority for its decision. Since Adams is inconsistent with our holding in the instant case, it is hereby overruled.

A case decided by this Court, not cited in the opinion of the Court of Appeals, Deaton v. Thomas, 262 N.C. 565, 138 S.E. 2d 201 (1964), held that a summons issued by the clerk but never delivered to the sheriff to whom it was directed for service may not serve as a basis for the issuance of an alias process or the extension of time for service. This case was decided under our old rules of civil procedure and relied, in part, on earlier decisions⁴ which held that a summons was not issued until it was delivered to the sheriff for service. Those cases are no longer controlling on the question of when a summons is issued since Rule 4(a) expressly provides that “a summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so.” The clerk is an officer having such authority. In the instant case, it is without question that the original summons and alias or pluries summonses were duly issued under Rule 4(a).

We conclude that plaintiffs failure to deliver the summons to the sheriff within thirty days after it was issued did not preclude the original summons from serving as a basis for the issuance of the alias or pluries summons. Plaintiffs action was timely commenced upon the filing of her complaint and summons, and the subsequent issuance of the alias or pluries summonses tolled the statute of limitations until service could be had on defendant. Therefore, the trial judge erred in granting defendant’s motion for summary judgment.

The decision of the Court of Appeals is

Reversed.

1 . An earlier action on these claims in Davidson County Superior Court was terminated by a voluntary dismissal.

2 . N.C.G.S. § 1-53 provides that an action for damages on account of the death of a person caused by a wrongful act must be commenced within two years of the date of death.

3 . All references herein to “rules” are to the North Carolina Rules of Civil Procedure, Chapter 1A-1 of the North Carolina General Statutes (1983), unless otherwise specified.

4 . McClure v. Fellows, 131 N.C. 509, 42 S.E. 951 (1902); United States v. American Lumber Co., 85 F. 827 (C.C.A. 9th Cir. 1898).