Crawford v. Aetna Casualty & Surety Co. , 44 N.C. App. 368 ( 1979 )

261 S.E.2d 25 (1979) 44 N.C. App. 368

Cohen Neal CRAWFORD
v.
AETNA CASUALTY & SURETY COMPANY and Michigan Tool Company, a division of Ex-Cell-O Corporation.

No. 7927SC318.

Court of Appeals of North Carolina.

December 18, 1979. Certiorari Denied February 6, 1980.

Harris & Bumgardner, by Robert Dennis Lorance and Clayward C. Corry, Jr., Gastonia, for plaintiff appellee.

Womble, Carlyle, Sandridge & Rice, by William F. Womble, Jr., and James M. Stanley, Jr., Winston-Salem, for defendants appellants.

Certiorari Denied by Supreme Court February 6, 1980.

VAUGHN, Judge.

Ex-Cell-O Corporation was not served with sufficient legal process and the court did not, therefore, have jurisdiction over that particular entity. The trial court erred in denying Ex-Cell-O's motion to dismiss pursuant to Rule 12(b) of the North Carolina Rules of Civil Procedure. G.S. 1A-1, Rule 12(b)(2)(4)(5). Ex-Cell-O was not made a party to the action commenced by plaintiff.

In Wiles v. Construction Co., 295 N.C. 81, 243 S.E.2d 756 (1978), the Supreme Court, in overruling a long line of its cases, held that where the direction of the summons is to the corporation's registered agent rather than the corporation, and the corporate defendant is named in the complaint and the caption of the summons, the service is not defective even though the summons is not directed to the defendant as required by Rule 4(b). In the case before us, we are dealing with two separate legal entitles, Michigan Tool Company and Ex-Cell-O Corporation. Complaint and summons directed to a defendant named as "MICHIGAN TOOL COMPANY, A Division of Ex-Cell-O Corporation" is not service on the entity Ex-Cell-O Corporation even if the complaint and summons reach the hands of someone obligated to receive service in behalf of Ex-Cell-O. Rule 4(b) provides in part that the summons "Shall be directed to the defendant or defendants and shall notify each defendant to appear and answer. . . ." G.S. 1A-1, Rule 4(b) (emphasis added). Ex-Cell-O was not a named party defendant. Wiles did not adopt a concept of "actual notice" for this State. The statutory requirements and the rules of procedure are still to be followed. See Hall v. Lassiter, 44 N.C.App. 23, 260 S.E.2d 155 (1979).

In Wiles, the Court reaffirmed the line of cases which held that no jurisdiction is obtained where neither the complaint nor the summons is directed to a corporation. Speaking for the Court, Justice Copeland said:

"We wish to point out at this juncture that a number of decisions citing the cases overruled . . . involved situations in which the complaint as well as the summons were directed to the corporate officers or agents. SEE, e. g. McLean v. Matheny, 240 N.C. 785, 84 S.E.2d 190 (1954); Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789 (1938); Jones v. VanStory, 200 N.C. 582, 157 S.E. 867 (1931); Young v. Barden, 90 N.C. 424 (1884). Because the potential for confusion in such a situation is significantly greater, these latter holdings remain undisturbed by this decision." 295 N.C. at 86, 243 S.E.2d at 759.

These cases cited and reaffirmed by the Wiles Court support Ex-Cell-O's position that no service or jurisdiction has been obtained on it. Plaintiff's amendment, in effect, substituted a party defendant that had never been properly served. It is not a correction of a misnomer. It adds a new, legal entity. This is not permitted. See Jones v. VanStory, supra, and Hogsed v. Pearlman, supra. Ex-Cell-O's motion should have been granted.

Reversed and remanded.

WEBB and HARRY C. MARTIN, JJ., concur.