Ellis v. Kimbrough

PARKER, Judge. It was error for the court to dismiss plaintiffs’ action. The action was validly commenced when the complaint was filed on 27 August 1979, well within the period of the statute of limitations. A valid original summons was issued on 28 August 1979, within the five day period after the filing of the complaint prescribed by Rule 4(a). True, the attempted service of this summons on 3 September 1979 was defective in that the copy of the summons delivered to defendant incorrectly indicated that the action was pending in Pitt rather than in Bertie County, see Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283 (1934); Brantley v. [182] Sawyer, 5 N.C. App. 557, 169 S.E. 2d 55 (1969), but the mistake on the copy did not in any way invalidate the original summons, which was itself in all respects correct. Rule 4(c) of the Rules of Civil Procedure provides that service of summons must be made within 30 days after the date of issuance of the summons (except in certain tax and assessment foreclosure actions not here applicable), “[b]ut the failure to [make service within the time allowed] shall not invalidate the summons.” When plaintiffs learned that the summons had not been validly served within 30 days after the date of its issuance as required by Rule 4(c), they procured the issuance of an alias summons, as they had a right to do under Rule 4(d)(2). That Rule provides: (d) ... 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: * * * (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. (Emphasis added.) By the express language of Rule 4(d), plaintiffs’ action, which had been commenced when the complaint was filed on 27 August 1979, was continued in existence as to the defendant when plaintiffs, within the time permitted by Rule 4(d)(2), sued out a valid alias summons. The record reveals that service of this alias summons was made on the defendant on 29 September 1979, and defendant has not questioned the validity of that service. Plaintiffs’ action having been commenced within the period permitted by the statute of limitations and having been continued in existence as to the defendant until valid service of summons was obtained upon him, it was error for the court to dismiss the action. [183] Mintz v. Frink, 217 N.C. 101, 6 S.E. 2d 804 (1940) and Lackey v. Cook, 40 N.C. App. 522, 253 S.E. 2d 335, cert. denied 297 N.C. 610, 257 S.E. 2d 218 (1979), are distinguishable from the present case. The plaintiff in each of those cases failed in apt time to sue out a valid alias summons, with the unfortunate result that the original action was discontinued. Plaintiffs in the present action did not make the same mistake. Holding as we do that the court erred in dismissing plaintiffs’ action, we do not reach the question sought to be presented by defendant’s appeal from the portion of the court’s judgment which permitted plaintiffs to bring a new action within 30 days of the date of the judgment. The judgment dismissing plaintiffs action is Reversed. Judges Hedrick and Vaughn concur.