Carl Rose & Sons Ready Mix Concrete, Inc. v. Thorp Sales Corp.

227 S.E.2d 301 (1976) 30 N.C. App. 526

CARL ROSE & SONS READY MIX CONCRETE, INC.
v.
THORP SALES CORPORATION.

No. 7623SC46.

Court of Appeals of North Carolina.

August 18, 1976.

Finger & Parker by Raymond A. Parker, II, and Daniel J. Park, Elkin, for plaintiff-appellee.

Womble, Carlyle, Sandridge & Rice by William C. Raper, Winston-Salem, for defendant-appellant.

PARKER, Judge.

"For a court to give a valid judgment against a defendant, it is essential that jurisdiction of the party has been obtained by the court in some way allowed by law. When a court has no authority to act, its acts are void." Russell v. Manufacturing Co., 266 N.C. 531, 534, 146 S.E.2d 459, 461 (1966). The contents required in a summons are set out in G.S. 1A-1, Rule 4(b), and one of the essential requirements is that the summons "shall be directed to the defendant or defendants and shall notify each defendant to appear and answer." The summons issued in the present case fails to comply with this requirement. It is not directed to the defendant, Thorp Sales Corporation, and does not notify defendant to appear and answer. The court acquired no jurisdiction over defendant and the default judgment entered against defendant is void. Philpott v. Kerns, 285 N.C. 225, 203 S.E.2d 778 (1974); Distributors v. McAndrews, 270 N.C. 91, 153 S.E.2d 770 (1967); Russell v. Manufacturing Co., 266 N.C. 531, 146 S.E.2d 459 (1967).

The broad discretionary power given the court by G.S. 1A-1 Rule 4(i) to "allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued," does not extend so far as to permit the court by amendment of its process to acquire jurisdiction over the person of a defendant where no jurisdiction had yet been acquired. See, Distributors v. McAndrews, supra. A defendant "cannot, in this short-hand manner by amendment, be brought into court without service of process." Plemmons v. Improvement Co., 108 N.C. 614, 615, 13 S.E. 188 (1891).

The order appealed from is

Reversed.

MORRIS and MARTIN, JJ., concur.