Hooker v. . Forbes

Adams, J. The sheriff’s return notes the service of process by reading the summons to the defendants and by delivering to each of them a copy both of the summons and of the complaint. As the return is prima facie correct it cannot be set aside unless the evidence in contradiction is clear and unequivocal. Commissioners v. Spencer, 174 N. C., 36; Trust Co. v. Nowell, 195 N. C., 449. The affidavit of the appellant discredits the return and that of the deputy sheriff supports it. The court found as a fact that the summons had been served as the statutes direct, and this finding is conclusive. Chemical Co. v. Long, 184 N. C., 398; Daugherty v. Commissioners, 183 N. C., 149. The principal exception relates to that part of the judgment which directs the clerk to affix his signature to the summons nunc pro tunc. When the plaintiffs applied to the clerk for a summons against the defendants they filed a complaint verified by one of the parties. The prosecution bond on the back of the summons was signed on behalf of the Greenville Banking and Trust Company, an executor, but the clerk did not issue the summons until the other executor had signed the bond and verified the complaint. Under the justification of the bond are the jurat and the clerk’s signature. After the bond had been justified and the complaint filed the clerk delivered the papers to the sheriff for service upon the defendants, not having signed his name to the summons. This process must be signed by the clerk of the Superior Court having jurisdiction to try the action. O. S., 476. The question is whether the *367 omission of the clerk’s signature may be supplied by amendment. It is provided that “the judge or court may, before or after judgment, in furtherance of justice, and on sucb terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party, by correcting a mistake in the name of a party, or a mistake in any other respect. . . . When a proceeding taken by a party fails to conform to law in any respect, the trial judge may permit an amendment of the proceeding so as to make it conformable thereto.” C. S., 541. The purpose of the statute is “to facilitate the trial and disposition of causes upon their merits; and to this end when necessary the process and pleadings are liberally reformed by amendments which do not substantially change the claim or defense.” Cheatham v. Crews, 81 N. C., 343. In Henderson v. Graham, 84 N. C., 496, the summons was issued without the signature of the clerk in the blank space at the end of the instrument. After it had been served the defendants’ attorney entered a special appearance and moved to dismiss the action, and the plaintiff’s attorney asked leave to amend by allowing the clerk to affix his signature nunc pro tunc. The court declined to allow the amendment for want of power and granted the motion to dismiss. On appeal to the Supreme Court Chief Justice Smith, after discussing the question whether the action must necessarily be .dismissed or abated, announced the following principle which was stated in one of the cited authorities: Any defect or omission of a formal character which would be waived or remedied by a general appearance or an answer upon the merits, may be treated as a matter which can be remedied by amendment. The failure of the clerk to sign the summons was held to be a mistake of this description. In the Henderson case the summons was issued by the clerk in Meck-lenburg on 4 January, 1879, and was addressed to the sheriff of that county. The seal was affixed, but the seal imparted no legal efficacy to the summons; it merely indicated its official character. The statute requiring the summons to be signed by the clerk “under the seal of his court” (Battle’s Revisal, 159, sec. 73), was repealed by the act of 1876-’7. Pub. Laws, ch. 85, sec. 4. If the seal was evidence of the official character of-the summons why should not the same significance be given to the clerk’s signature under the jurat on the back of the summons? A seal, especially when not necessary, is not the only way by which the official character of process may be shown. This fact is pointed out in Redmond v. Mullenax, 113 N. C., 505: “Though the paper purporting to be a summons may be informal in some respects, or even defective in failing to contain all that, according to the requirements of the *368 statute, should appear in it, its informality and defects may be cured by amendment if there is evidence upon its face that it has emanated from the proper office and was intended to bring the defendants into court to answer a complaint of the plaintiff.” The clause, “Unless there is something upon the face of the paper which stamps upon it unmistakenly an official character, it is not a defective summons, but no summons at all,” was evidently intended to accentuate the insufficiency of the blank summons taken from the clerk’s office by an agent of the plaintiff and filled out in the office of the plaintiff’s attorney — the fact being that the summons was never issued or served. It had previously been decided that a writ signed by an attorney under a verbal deputation of the clerk to all the members of the bar was a nullity. Shepherd v. Lane, 13 N. C., 148; Gardner v. Lane, 14 N. C., 53. It has been held that process issued to another county without a seal is void (Taylor v. Taylor, 83 N. C., 116; McArter v. Rhea, 122 N. C., 614), but in Calmes v. Lambert, 153 N. C., 248, it was said that if these expressions are correct they are so only until the process is validated by amendment, and several of our decisions have sustained amendments of this character. Clark v. Hellen, 23 N. C., 421; Vick v. Flournoy, 147 N. C., 209. See, also, Elramy v. Abeyounis, 189 N. C., 278. According to the foregoing principle the absence of the clerk’s signature on the summons was a defect of a formal character which would have been waived by a general appearance and was therefore remediable by amendment. Judgment Affirmed.