Brown v. Overby

300 S.E.2d 565 (1983)

J. Thomas BROWN, Jr. Administrator of the Estate of Randolph Hendricks, Deceased
v.
Randy Sherwood OVERBY.

No. 828SC395.

Court of Appeals of North Carolina.

March 15, 1983.

Duke & Brown by John E. Duke, Goldsboro, for plaintiff-appellee.

Dees, Dees, Smith, Powell & Jarrett by William W. Smith and Tommy W. Jarrett, Goldsboro, for defendant-appellant.

HEDRICK, Judge.

All of defendant's assignments of error raise the one question of whether service by publication on 16 September 1981 revived an otherwise discontinued action. The chronology of events heretofore set out discloses that the last alias and pluries summons, issued on 23 April 1981, was not served within 90 days, so the action was discontinued pursuant to N.C.Gen.Stat. § 1A-1, Rule 4(d), (e). Stated differently, the only question raised on this appeal is whether the commencement of service by publication pursuant to N.C.Gen.Stat. § 1A-1, Rule 4(j)(1) is sufficient to satisfy the requirements of N.C.Gen.Stat. § 1A-1, Rule 4(e), which allows that, "the action shall be deemed to have commenced on the date of such issuance ..." after the original action has been discontinued.

We are constrained to hold that the present case is controlled by Byrd v. Watts Hospital, 29 N.C.App. 564, 225 S.E.2d 329 (1976), wherein the facts are practically identical. In Byrd, service by publication was made on one defendant over 90 days after the previous summons to him had been issued and returned unserved. Default judgment was entered against that defendant when he did not appeal. The Court of Appeals reversed for insufficiency of service of process. In writing for a unanimous panel of this Court, Judge Britt stated:

... here, the action had abated at the time plaintiff attempted service by publication. Before plaintiff here could obtain service by publication he first had to revive the action, and that revival could be accomplished only by the issuance of alias or pluries summons or endorsement of the last valid summons.

... We think Rule 4(e) mandates that something be done in the clerk's office to revive a discontinued action—obtain an alias or pluries summons or an endorsement to the original summons. (Emphasis in original.)

29 N.C.App. at 569, 225 S.E.2d at 331-332.

The order appealed from is reversed.

WHICHARD and BRASWELL, JJ., concur.