Jones v. Whitaker , 59 N.C. App. 223 ( 1982 )

296 S.E.2d 27 (1982)

Marlene J. JONES
v.
Shirley Sapp WHITAKER and Charles Kendall Whitaker.

No. 8121SC1360.

Court of Appeals of North Carolina.

October 19, 1982.

Kennedy, Kennedy, Kennedy & Kennedy by Annie Brown Kennedy and Harold L. Kennedy, Winston-Salem, III for plaintiff, appellant.

Petree, Stockton, Robinson, Vaughn, Glaze and Maready, by Grover G. Wilson and Michael L. Robinson, Winston-Salem, for defendants, appellees.

HEDRICK, Judge.

The only question we need consider on this appeal is whether proper service of summons and complaint was had on the defendants, Shirley Sapp Whitaker and Charles Kendall Whitaker. Plaintiff first contends the trial judge erred in dismissing her claim against the defendant Shirley Sapp Whitaker for lack of proper service. Defendants, citing Roshelli v. Sperry, 57 N.C.App. 305, 291 S.E.2d 355 (1982), argue service on the defendant Shirley Sapp Whitaker was improper since the summons and complaint served on defendant Shirley Sapp Whitaker named Sherrie Sapp Whitaker.

Although service of process should correctly state the name of the parties, a mistake in the names is not always a fatal error, and as a general rule a mistake in the given name of a party who is served will not deprive the court of jurisdiction. 62 Am.Jur.2d Process § 18 (1972). As stated in Patterson v. Walton, 119 N.C. 500, 501, 26 S.E. 43 (1896), "Names are to designate persons, and where the identity is certain a variance in the name is immaterial." Also, error or defects in the pleadings not affecting substantial rights are to be disregarded. Id. When original process has been served properly and amendments to it are to make process and pleadings consistent, the court will retain jurisdiction. Fountain v. County of Pitt, 171 N.C. 113, 87 S.E. 990 (1916).

In the present case, the record discloses that proper service of process was had on the defendant, Shirley Sapp Whitaker, on 3 February 1981. The fact that the summons and complaint were directed to Sherrie Sapp Whitaker and the deputy sheriff changed the name from Sherrie to Shirley when he served the defendant is of no legal significance since the proper party was actually served. Under these circumstances, the defendant could not have suffered any prejudice. All that is required is that the proper party be properly served. The case cited by defendants, Roshelli v. Sperry, is clearly distinguishable. There the proper party was not served. Furthermore, assuming only the original complaint was served on the defendant the amending of the complaint to correct the misnomer for the sake of conformity in process and pleading did not invalidate the earlier proper service. 171 N.C. at 115, 87 S.E. at 992.

With respect to the defendant Charles Whitaker, the defendant contends the court correctly dismissed the action against him because the amended complaint, filed on 27 February 1981, discloses on its face plaintiff's action was barred by the three year statute of limitations. Defendant argues that, although plaintiff's claim had been kept alive by the issuance of alias and pluries summonses, he was never served with the original complaint, and was served only with the amended complaint on 17 June 1981. Charles Whitaker contends, that because the only pleading received by him was filed more than three years after the accident giving rise to this action, the applicable statute of limitations, G.S. 1-52(5), bars any claim against him by this plaintiff.

Assuming arguendo, that the answer filed by the defendant on 2 March 1981 did not give the court jurisdiction, we hold the trial court erred in dismissing plaintiff's claim against this defendant. As pointed out above, the amendment to the complaint merely corrected the given name of the codefendant. The action against the defendant, Charles Whitaker, was commenced on 31 December 1980 by the issuance of summons and filing of a complaint. The action was commenced before the running of the three year statute of limitations. The amended complaint related back to the issuance of the summons and the filing of the original complaint since the amendment did not in any way alter the substance of the complaint. Proper service of proper process was had on the defendant Charles Whitaker on 17 June 1981. The judgment dismissing plaintiff's claims against defendants is reversed.

Reversed.

WEBB and HILL, JJ., concur.