Byrd v. Trustees of Watts Hospital, Inc.

225 S.E.2d 329 (1976) 29 N.C. App. 564

Earl J. BYRD
v.
The TRUSTEES OF WATTS HOSPITAL, INC. and/or Watts Hospital, Incorporated, et al.

No. 7515SC1072.

Court of Appeals of North Carolina.

June 2, 1976.

Cooper, Dodd & Hood by William B. Garrison, Jr., Chapel Hill, for plaintiff-appellee.

Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson by E. C. Bryson, Jr., Durham, for defendants-appellants.

BRITT, Judge.

DEFENDANT POLANCO'S APPEAL

Defendant Polanco excepted to, and assigns as error, that part of the order denying his motion to dismiss the action as to him, or, in the alternative, to quash the service of process by publication. We think the trial court erred in denying defendant Polanco's motion to quash the purported service of process by publication.

G.S. 1A-1, Rule 4(d) and (e), provide in pertinent part as follows:

(d) Summons—extension; endorsement, alias and pluries.—When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:

(1) The plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Return of the summons so endorsed shall be in the same manner as the original process. Such endorsement may be secured within 90 days after the issuance of summons or the date of the last prior endorsement, or

(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.

* * * * * *

(e) Summons—discontinuance.—When there is neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action is discontinued as to any defendant not theretofore served with summons within the time allowed. Thereafter, alias or pluries summons may issue, or an extension be endorsed by the clerk, but, as to such defendant, the action shall be deemed to have commenced on the date of such issuance or endorsement. (Emphasis added.)

Defendant Polanco contends that at the time plaintiff sought to obtain service of process on him by publication, the action as to him had been discontinued, and that the only way the pending action could be revived as to him would have been by issuance of alias or pluries summons or by an extension endorsed by the clerk. In our view, defendant's contention is supported by Rule 4(d) and (e) quoted above and we find no other provision in Rule 4 or any other rule or statute that alters the contention.

The record discloses that original summons was issued and complaint filed in February 1969. Both were returned unserved as to defendant Polanco. When plaintiff failed to obtain service in some manner, or obtain an alias or pluries summons, or endorsement as provided by Rule 4(d)(1) or (2) within 90 days after the issuance of the original summons, the action was discontinued as to him. Assuming, arguendo, that the action was revived by issuance of the 23 October 1973 summons, the action was discontinued again 90 days after 23 October 1973. Plaintiff's effort to serve process by publication occurred in October 1974.

In McCoy v. McCoy, 29 N.C.App. 109, 223 S.E.2d 513 (1976), this court held that issuance of a summons is not essential to validity of service of process by publication made pursuant to G.S. 1A-1 Rule 4(j)(9)(c) upon a party to a civil action whose address, whereabouts, dwelling house, or usual place of abode is unknown and cannot with due diligence be ascertained. We find it easy to distinguish McCoy from the instant case. In McCoy, the defendant was served with process by publication immediately after the action was instituted; 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.

G.S. 1A-1, Rule 3, requires that something be done in the clerk's office to commence an action—file the complaint or obtain a summons and order extending time to file the complaint. 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.

In his brief, plaintiff argues with respect to tolling of the statute of limitations because of defendant Polanco's absence from the state. That question is not before us on this appeal. The provision of the order appealed from denying defendant Polanco's motion to quash the purported service of process by publication is reversed.

PLAINTIFF'S APPEAL

Plaintiff assigns as error the trial court's setting aside the entry of default against defendant Polanco. We find no merit in this assignment. While the action of the trial court is fully supported by several of the reasons stated in the order, the action is clearly justified by our holding on defendant Polanco's appeal.

Plaintiff contends the trial court erred in allowing the law firm of Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson to adopt the motions previously filed on behalf of defendant Polanco by Attorneys Spears and Battle. We find no merit in this contention.

In the first place the only exceptions by plaintiff to this action by the court are set forth in the record where plaintiff groups his exceptions and assignments of error. There is nothing in the record to indicate that at any point during the hearing plaintiff objected to the appearance of defendants' present counsel or the granting of their request that their client be allowed to adopt the motions previously filed on his behalf.

In the second place, under the facts appearing, we think the matter rested in the sound discretion of the trial judge and that there was no abuse of discretion.

* * * * * *

With respect to plaintiff's appeal, the order is affirmed.

With respect to defendant Polanco's appeal, the provision of the order denying his motion to quash the purported service of process by publication is reversed.

This cause is remanded for further proceedings not inconsistent with this opinion.

VAUGHN and ARNOLD, JJ., concur.