Roshelli v. Sperry , 63 N.C. App. 509 ( 1983 )

305 S.E.2d 218 (1983)

Louis F. ROSHELLI
v.
Lawrence F. SPERRY.

No. 8215SC801.

Court of Appeals of North Carolina.

August 2, 1983.

Charles C. Thompson, III, Graham, for plaintiff-appellant.

Tuggle, Duggins, Meschan, Thornton & Elrod, P.A. by Joseph F. Brotherton, Greensboro, for defendant-appellee.

EAGLES, Judge.

In arguing that the defendant's motion for summary judgment was erroneously granted, plaintiff acknowledges that the summons directed to the defendant was not issued until eleven days after the complaint was filed and more than three years after the occurrence of the injuries for which he seeks recovery. He contends that the applicable three year statute of limitations, G.S. 1-52, was tolled when the action was commenced by the filing of his complaint on 27 March 1981 and continued to be tolled subject only to having the defendant properly served with a copy of the complaint and summons, even though issuance of the summons against defendant occurred more than five days after filing of the complaint. We do not agree.

An action is commenced under G.S. 1A-1, Rule 3, by the filing of a complaint or the issuance of a summons. Here, plaintiff's lawsuit was commenced by the filing of his complaint on 27 March 1981, within the three year limitation period of G.S. 1-52 governing personal injury actions. G.S. 1A-1, Rule 4(a) states that upon the filing of the complaint, summons "shall be issued forthwith, and in any event within five days." (Emphasis added.) G.S. 1A-1, Rule 4(b) mandates that the summons "shall be directed to the defendant ...." (Emphasis added.) A summons was properly issued within the five day limit allowed by Rule 4(a) but it was directed to Beverly N. Sperry, who was not a party defendant to this lawsuit. The summons issued in the name of the defendant Lawrence F. Sperry was issued eleven days after the filing of the complaint. Plaintiff's failure to cause a summons to be issued in the name of Lawrence Sperry within five days of the filing of his complaint resulted in a discontinuance of the action against defendant. The summons which was issued on 7 April 1981 for service on Lawrence Sperry initiated a new action at the time of its issuance. Roshelli v. Sperry, 57 N.C.App. 305, 291 S.E.2d 355 (1982); Cf. Morton v. Insurance Co., 250 N.C. 722, 110 S.E.2d 330 (1959) (effect of issuance of second summons after a discontinuance of first action, decided under former law). The commencement of the action on 7 April 1981 occurred more than three years after the accident on 31 March 1978. The action is barred by G.S. 1-52.

Plaintiff argues that because the 7 April 1981 summons issued in the name of Lawrence Sperry was endorsed by the clerk, it related back to the 27 March 1981 issuance of the original summons in the name of Beverly N. Sperry. G.S. 1A-1, Rule 4(d), on which plaintiff relies, pertains to the extension of time for "service" of a summons which has been properly issued against a named defendant. In this case the original summons was issued in the name of a person other than the defendant and not a party to the action, a circumstance to which Rule 4(d) does not apply. Roshelli v. Sperry, supra. The purpose of Rule 4(d) is only to keep the action alive by means of an endorsement on the original summons or by issuance of an alias or pluries summons in situations where the original, properly directed summons was not yet served.

The order of the trial court which granted summary judgment to the defendant is

Affirmed.

WHICHARD and JOHNSON, JJ., concur.