Deaton v. Thomas

138 S.E.2d 201 (1964) 262 N.C. 565

Carl E. DEATON
v.
Grady Junior THOMAS.

No. 242.

Supreme Court of North Carolina.

October 14, 1964.

Hollowell & Stott, Gastonia, Kenneth R. Downs, Charlotte, for plaintiff appellee.

Carpenter, Webb & Golding, Charlotte, Childers & Fowler, Gastonia, for defendant appellant.

DENNY, Chief Justice.

G.S. § 1-95 in pertinent part provides: "When the defendant in a civil action or a special proceeding is not served with summons within the time allowed for its service, it shall not be necessary to have new process issued. At any time within ninety days after issue of the summons, or after the date of the last prior endorsement the clerk, upon request of the plaintiff shall endorse upon the original summons an extension of time within which to serve it. The extension shall be for the same number of days, from the date of such endorsement, as were originally allowed for service. * * *"

After the original summons was issued in the Gaston County action instituted by Grady Thomas, Jr. against Carl E. Deaton and Sadie L. Ledbetter, which summons was returned unserved, the plaintiff had the statutory right to apply to the Clerk of the Superior Court of Gaston County at any time within ninety days from the date the original summons was issued, for an extension of time in which to serve said summons. However, when the order was entered on the original summons on 23 April 1963, extending the time in which to serve the summons until 13 May 1963, the original summons became functus officio at the expiration of the extended time since it was never delivered to the Sheriff of Mecklenburg County for service but was kept in the possession of counsel for Grady Thomas, Jr., who made no effort to have it served. Consequently, when the order was entered on 1 August 1963 extending the time for service for twenty days, more than ninety days had elapsed since the original summons was issued on 3 April 1963. Likewise, more than ninety days had elapsed since the return of the unserved summons by the Sheriff of Mecklenburg County on 17 April 1963; in the meantime, the original summons had not been kept alive.

In order for a plaintiff to be entitled to the procurement of an extension of time to serve summons, it is contemplated by our statutes and decisions that the summons as originally issued or extended by order of the clerk, must be served by the sheriff to whom it is addressed for service within the time provided therein, and if not served within that time, such summons must be returned by the officer holding the same for service to the clerk of the county issuing the summons, with notation thereon of its nonservice and the reasons therefor as to any defendant not served. G.S. § 1-89; Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215.

In United States v. American Lumber Co. (C.C.A. 9th Cir.), 85 F. 827, it is said: "In order that the writ be deemed to be sued out, it must have left the possession of the officer who issued it, and must either have reached the possession of the officer who is to serve it, or the possession of some one who is the medium of transmission to such officer. But this is not sufficient to toll the statute of limitations. The delivery of the writ must be followed either by a service of the same or by a bona fide effort to serve it. If nothing be done with the writ after its issuance, if it be returned unserved, or without the bona fide effort to serve it, and a new writ be taken out, the date of the commencement of the suit will be postponed to the date of the second writ."

In the case of McClure v. Fellows, 131 N.C. 509, 42 S.E. 951, this Court said: "The summons was not issued. It did not pass from the hands of the clerk. It was never delivered to the sheriff, nor to any one for him, expressly or impliedly. Therefore, it was never issued. Webster v. Sharpe, 116 N.C. 466, 21 S.E. 912 (at page 471, 116 N.C., and at page 912, 21 S.E.). It was in process of issuance, and had it been delivered to the sheriff, or to some one for him, its issuance would have become complete, and been in force and of effect from the time of the filling out and dating by the clerk."

We hold that where a summons is issued by a clerk of the superior court and such summons is never delivered to the officer to whom it is directed for service, after the time for service has been extended, such summons may not be used as a basis for the issuance of an alias process or the extension of time for service. Atwood v. Atwood, 233 N.C. 208, 63 S.E.2d 103. Consequently, we hold that the order entered by the Clerk of the Superior Court of Gaston County on 1 August 1963, more than ninety days after the issuance of the original summons, in light of the facts revealed by the record, served only to commence the Gaston County action as of 1 August 1963. Ryan v. Batdorf, 225 N.C. 228, 34 S.E.2d 81.

The judgment of the court below is

Affirmed.