West v. G. D. Reddick, Inc. , 38 N.C. App. 370 ( 1978 )

248 S.E.2d 112 (1978) 38 N.C. App. 370

Walter Arnell WEST
v.
G. D. REDDICK, INCORPORATED.

No. 7723SC1016.

Court of Appeals of North Carolina.

October 17, 1978.

Vannoy, Moore & Colvard by J. Gary Vannoy, North Wilkesboro, and Morris W. Keeter, Cherryville, for plaintiff-appellee.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and Keith W. Vaughan, Winston-Salem, for defendant-appellant.

ERWIN, Judge.

First, we reject defendant's contention that the trial court acquired no personal jurisdiction over it. A summons containing the alleged infirmity with which we are here confronted was upheld by our Supreme Court in Wiles v. Construction Co., 295 N.C. 81, 243 S.E.2d 756 (1978). The Court in Wiles overruled a line of authority to the extent that the cases therein were inconsistent with the rule announced by the Court. The Wiles rule was applied by this Court in Public Relations, Inc. v. Enterprises, Inc., 36 N.C.App. 673, 245 S.E.2d 782 (1978).

We further conclude that the trial court properly allowed plaintiff's motion for voluntary dismissal. G.S. 1A-1, Rule 41(a)(2), "Voluntary Dismissal by Order of Judge," provides in pertinent part:

"Except as provided in subsection (1) of this section, an action or any claim therein shall not be dismissed at the plaintiff's instance save upon order of the judge and upon such terms and conditions as justice requires."

Whether an order granting voluntary dismissal under Rule 41(a)(2) should be entered is a matter of trial court discretion. King v. Lee, 279 N.C. 100, 181 S.E.2d 400 (1971); Lewis v. Piggott, 16 N.C.App. 395, 192 S.E.2d 128 (1972). Rule 41 places no time limit on the right of a plaintiff to move for a voluntary dismissal under 41(a)(2). See Shuford, N.C. Civil Practice and Procedure, § 41-5. In King v. Lee, supra, our Supreme Court remanded the case to permit a motion for voluntary dismissal. We note that no appeal was pending herein at the time the voluntary dismissal order was entered. Cf. Bowen v. Motor Co., 292 N.C. 633, 234 S.E.2d 748 (1977). Further, the 12 and 15 September orders were entered during the same term of court.

Further, we are of the opinion that the 30 September order is of no effect and must be vacated, because the trial court could not properly enter any further orders in the case in that defendant had at that point previously filed notice of appeal from the 15 September order, the trial court had allowed a voluntary dismissal, and the term of court during which the 12 and 15 September orders had been entered had expired. See Bowen v. Motor Co., supra; Sutton v. Sutton, 18 N.C.App. 480, 197 S.E.2d 9 (1973); Collins v. Collins, 18 N.C.App. 45, 196 S.E.2d 282 (1973).

The results, therefore, are as follows: the order of 15 September 1977 is affirmed; the order of 30 September 1977 is vacated.

MORRIS and VAUGHN, JJ., concur.