Simms v. Mason's Stores, Inc. (NC-1)

MORRIS, Judge. Plaintiff’s assignments of error raise the following questions on appeal: (1) Whether the service of process upon defendant was ineffective and void; and (2) whether the defendant waived any objection to the jurisdiction of the court over it by obtaining an enlargement of time in which to file “answer or otherwise plead ?” We turn first to the question dealing with the service of process. G.S. 1A-1, Rule 4(j) (6) provides: “ (j) Process — manner of service to exercise personal jurisdiction. — In any action commenced in a court of this State having jurisdiction of the subject matter and grounds' for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process shall be as follows: (6) Domestic or Foreign Corporation. — Upon a domestic or foreign corporation: a. By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing [192] agent with the person who is apparently in charge of the office; or b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service or process or by serving process upon such agent or the party in a manner specified by any statute.” In order to obtain jurisdiction over a domestic corporation, Rule 4(j) (6) specifies that a copy of the summons and complaint may be served (1) upon an officer, director or managing agent of the corporation; (2) by leaving copies of the summons and complaint in the office of an officer, director or managing agent with the person who is apparently in charge of the office; (3) by delivering the summons and complaint to an agent authorized to accept service by appointment; (4) by delivering the summons and complaint to an agent authorized to accept service by law; or (5) by delivery of the summons and complaint upon an agent authorized to accept service by appointment or by law in the manner provided by any other effective statute. Upon the facts before us, it is readily apparent that service was not made upon an officer, director, or managing agent of Mason’s Stores, Inc. (NC-1). Nor was service effected by leaving process in the manager’s office with a person who was apparently in charge of the office. The evidence indicates that Deputy Penland never looked in the office of the manager; rather, he delivered the process to Vera Wallin as she stood by the front of the store near a cash register. Judge Fountain found upon conflicting evidence that Deputy Penland served Vera Wallin with process in an unrelated lawsuit, then delivered the process in this action to her, saying “I might as well give these to you also.” At best, the plaintiff’s evidence shows that Deputy Penland asked if the manager of the store was present, and finding that he wasn’t, Deputy Penland delivered the process to Vera Wallin having no knowledge of her authority to accept service, and failing to inquire as to her authority. Nor was service effected by delivering the process to an agent authorized to accept service by appointment. This provision of Rule 4(j) (6) contemplates service on agents either expressly or impliedly appointed by the corporation as agents [193] to receive process. Wright and Miller, Federal Practice and Procedure: Civil, § 1101. “ . . . The agency for the receipt of process may he implied from the surrounding circumstances. But the mere appointment of an agent, even with broad authority, is not enough; it must be shown that the agent had specific authority, express or implied, for the receipt of service of process.” 2 Moore’s Federal Practice ¶ 4.22 [1], p. 1116. The evidence produced by the plaintiff was inadequate to show any implied authority on the part of Vera Wallin to accept service of process. Deputy Penland’s affidavit recited, in pertinent part, that: “ ... It has been my duty on several occasions to serve subpoenas on her (Vera Wallin) with regard to shoplifting cases in which Mason’s Stores, Inc., was involved. ... I assumed, as a result of her appearing in court on behalf of Mason’s Stores, Inc., and as a result of seeing her in the store on several occasions, that Vera Wallin was an employee of Mason’s Stores, Inc....” At most, the above recitals show that Deputy Penland had served subpoenas on Vera Wallin on prior occasions, that Vera Wallin had appeared as a witness in court on behalf of Mason’s Stores, Inc., and that Penland assumed Vera Wallin was employed at Mason’s Stores, Inc. This evidence fails to meet the plaintiff’s burden of showing the required specific agency to accept service of process. Nor was service effected by delivering the process to an agent authorized to accept service by law. The phrase “an agent authorized ... by law to be served” includes within its scope state statutes vesting authority in certain persons to receive process, agencies implied in law, and agencies by estoppel. 2 Moore’s Federal Practice ¶ 4.22 [1], p. 1118. We hold that plaintiff’s evidence was insufficient to carry the burden of showing any statutory agency, agency implied in law, or by estoppel. Since there is no other effective statute providing an alternative method for service of process on Mason’s Stores, Inc., we conclude that the attempted service of process upon the corporate defendant was ineffective and void, and that no [194] jurisdiction over .the person of the defendant was- obtained thereby. Plaintiff next contends that the defendant waived its defense of insufficiency of service of process and its objection to the jurisdiction of the court over the defendant’s person by making a general appearance in the action when defendant obtained an enlargement of time in which to file answer or other pleading. However, “[s] pedal appearances are-no longer necessary in any case. ‘Rule 12 has abolished . . . the age old distinction between general and special appearances.’ A voluntary appearance does not- waive the objection of lack of- jurisdiction over the person. . . . ” 2A Moore’s Federal Practice ¶ 12.12, p. 2324. The plaintiff’s argument has been answered adversely to him in two prior decisions of this Court, and we hold that the plaintiff’s contention is not well taken. See Williams v. Hartis, 18 N.C. App. 89, 195 S.E. 2d 806 (1973); Leasing, Inc. v. Brown, 14 N.C. App. 383, 188 S.E. 2d 574 (1972). The judgment of the trial judge, dismissing the cause for want of jurisdiction over the person of the defendant, is affirmed. Affirmed. Judges Britt and Parker concur.