Hendrix v. Alsop , 10 N.C. App. 338 ( 1971 )

BROCK, Judge.

Because of the plaintiff’s action on 1 August 1969 of causing a summons to be issued and served upon the defendant Alsop under a caption different from that used upon the summons issued to Alsop in 1967; and because on 1 August-1969 plaintiff caused separate summons to be issued to the defendants Pfizer and Roerig; and because the record before us did not disclose whether a new action was instituted on 1 August 1969, we requested additional argument, upon briefs only, on the following question: “Did the issuance of summons on 1 August 1969 to defendant Alsop and the two corporate defendants constitute the commencement of an action on 1 August 1969 against the three defendants?” Also we secured additional information concerning the record from the Clerk of Superior Court. In their supplemental briefs' counsel for plaintiff and counsel for defendants insist that no new action was instituted on 1 August 1969 but that the complaint was filed and the summonses issued in the 1967 action. The Clerk’s records bear out that this was the intention of all parties because the 1967 case file has been brought forward at all times! to contain the complaint, summonses, motions, and orders filed in 1969. Further plaintiff’s motion for additional time to file the complaint in the 1967 action and plaintiff’s motion to vacate Judge Collier’s 1968 order clearly show that it was plaintiff’s intention that this complaint be filed in, and that these summonses be issued in, the 1967 action.

The orders of the Clerk of Superior Court of Guilford County, dated 16 September 1969 and 22 September 1969, allowing defendants’ motions to dismiss plaintiff’s action, and Judge Gambill’s orders of 6 January 1970 affirming the orders of the Clerk are based upon theories to the following effect:

As to defendant Alsop:

That the extension of time to file complaint allowed by the Clerk in May 1967 had expired before 1 August 1969, and the Clerk had no authority to further extend the time. Therefore, the filing of the complaint on 1 August 1969 was without authority and the complaint, along with the order for service thereof, should be stricken.

As to defendants Pfizer and Roerig:

That plaintiff obtained no order allowing him to make Pfizer and Roerig parties defendant in the May 1967 action, and plaintiff’s unilateral act of causing summons and complaint to be served upon them was ineffective to make them parties, and the summons and complaint should be stricken as to each of them.

All of the proceedings in this case, with the exception of the orders from which this appeal is taken, the procedural propriety of which are not in issue, transpired before the effective date of the Rules of Civil Procedure, N.C. G.S. Chap. 1A; therefore, the disposition of this appeal is governed by the rules of practice as they existed before 1 January 1970.

This appeal can be considered” as though the following situation exists: Plaintiff caused summons to be issued and obtained an order from the Clerk extending time within which to file his complaint. The time designated within which plaintiff might file his complaint expired without complaint being filed. No further action was taken by plaintiff or defendant until a considerable time elapsed, and thereafter the chronology of the events is as follows: Plaintiff filed a complaint naming the original defendant as a defendant, and also naming two additional parties as defendants. At the time of filing the complaint plaintiff secured an order from the Clerk for service of the complaint on the original defendant, and caused summons to be issued for the two additional defendants. The order and complaint were served on the original defendant, and the summons and complaint were served on the two additional defendants. Each defendant then moved to dismiss upon the theories summarized above, and their motions were allowed.

Prior to 1 January 1970 the usual procedure to commence a civil action was by issuance of summons, G.S. 1-88, and the date of the summons was prima facie evidence of the date of issuance. G.S. 1-88.1. Therefore, it is clear that plaintiff instituted an action against defendant Alsop on 5 May 1967, and service of summons on defendant Alsop was completed on 12 May 1967. An action is deemed to be pending from the time it is commenced until its final determination. McFetters v. McFetters, 219 N.C. 731, 14 S.E. 2d 833. Except where a discontinuance of a civil action occurs under G.S. 1-96 for failure to perfect service of summons, Morrison v. Lewis, 197 N.C. 79, 147 S.E. 729, the final determination is by final judgment. McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E. 2d 860.

At the time plaintiff filed the complaint on 1 August 1969, original defendant Alsop had not moved to dismiss the action, plaintiff had not taken a voluntary nonsuit, there had been no discontinuance of the action under G.S. 1-96 for failure to perfect service of summons, and the action had not been otherwise determined by final judgment; therefore, the action was pending against original defendant Alsop in the Superior Court of Guilford County when plaintiff filed his complaint and caused it to be served on original defendant Alsop.

Although the question of the application of statutes of limitation are not raised by this appeal, there was reference to such application in oral argument and in defendants’ brief; and it is obvious that such questions will become involved as this case goes back to the trial division. Therefore, we feel it appropriate to make the following observation. Our holding that the action against original defendant Alsop was pending from 5 May 1967 until 1 August 1969 without complaint having been filed should not be considered as an indication that 5 May 1967 is the date to be used in determining whether plaintiff’s actions are barred by the statutes1 of limitation. The case of Congleton v. City of Asheboro, 8 N.C. App. 571, 174 S.E. 2d 870, is controlling on the question of the application of the statute of limitation. In Congleton Judge Morris held: “Where plaintiff fails to comply with the statutory provisions relating to such extensions, the date the complaint was filed must be used in determining whether the statute of limitations is applicable.”

An order of court further extending the time to file complaint to and including 1 August 1969 was not a prerequisite to filing the complaint on that date where no effort had been previously made to dismiss the action. Roberts v. Allman, 106 N.C. 391, 11 S.E. 424.

The theory upon which the Clerk allowed the motion of original defendant Alsop to strike the order for service of complaint and the complaint, and the theory upon which the Judge affirmed the Clerk’s order is in error. The motion of original defendant Alsop should have been denied, and the orders of the Clerk and the Judge to the contrary must be reversed.

When plaintiff filed his complaint on 1 August 1969 he caused summons to be issued and served, with copy of the complaint, on each of two new defendants (Pfizer and Roerig). “If necessary parties are absent, they may be brought in by a motion, order, and the service of process.” Short v. Realty Co., 262 N.C. 576, 138 S.E. 2d 210. However, plaintiff made no motion, and no order was entered authorizing the additional parties. “From the time of service of the summons, in a civil action, . . . the court is deemed to have acquired jurisdiction, and to have control of all subsequent proceedings.” G.S. 1-101. Summons in the 1967 action was served 12 May 1967 and from that date the court had control of the action for purposes of determining whether new parties were to be added. Plaintiff’s action of causing summons and complaint to be served on Pfizer and Roerig was without authority, and the order of Judge Gambill affirming the Clerk’s order striking the service of summons and complaint and dismissing the action as to Pfizer and Roerig must be affirmed.

We are not ruling upon the sufficiency of plaintiff’s allegations, nor the merits of his claims against AIsop; we are merely ruling that plaintiff was entitled to file his complaint.

The record on appeal in this case covers 149 mimeographed pages. This appears to have been caused primarily because of the inability of counsel to agree upon anything. As can be seen the questions presented on this appeal are relatively concise when all of the irrelevant matter is1 brushed aside. It seems to us that, if a more cooperative spirit had prevailed between counsel, considerable time and energy on their part and the part of this Court could have been saved. The record and the briefs also contain vilifying remarks of counsel concerning each other. This type of conduct adds nothing to the dignity of the profession and offers no assistance to the cause of their clients.

The order of Judge Gambill entered on 6 January 1970 affirming the order of the Clerk dismissing the action as to AIsop is reversed and this cause is remanded to the Superior Court of Guilford County with directions that the Clerk’s order of 16 September 1969 dismissing the action as to defendant AIsop be vacated, and that defendant AIsop be granted time within which to file answer or otherwise plead. That portion of Judge Gambill’s order which denies plaintiff’s motion for additional time to file complaint is of no effect because the complaint had already been filed.

The order of Judge Gambill entered on 6 January 1970 affirming the order of the Clerk entered 22 September 1969 dismissing this action as to defendants Pfizer and Roerig is affirmed.

We affirm the order entered by Judge Gambill on 6 January 1970 denying plaintiff’s motion to vacate the order of Judge Collier which was entered on 20 August 1968.

Affirmed in part.

Reversed and remanded in part.

Judge Morris concurs. Judge Graham concurs in part, and dissents in part.