*1 CASES ARGUED IN THE AND DETERMINED OF APPEALS COURT
OF North Carolina
AT Raleigh MAREADY, PETREE,
SHIRLEY T. v. W. F. HARRIS H. WILLIAM C. ROGER HARRIS, PETREE, STOCKTON, ROBINSON, VAUGHN, GLAZE and MAREADY
No. 8221SC939 (Filed 1983) September change § 1. Rules of Civil 15— Procedure motion to strike amended — party properly allowed — properly The trial court allowed an amend- defendants’ motion to strike plaintiffs complaint through sought ment to “P.A.” which to delete amendment, firm, caption party-defendants, from the a law since the allowed, party- it to were be would a substitution of constitute at most served, party party defendants and create a who had been a new never corporation whom the statute of which was limitations had run. The designated party-defendant partnership, was name of the not the firm partnership partners. court had no over the or its 5;§ § Process Rules of Civil 4— amend sum- Procedure denial of oral motion to abuse mons—no of discretion plaintiffs There was no abuse of court’s denial of discretion in the trial upon motion to amend a summons the individual defendant oral deleting inserting Roger the name in lieu thereof “C. Harris” Maready,” law “W. F. summons served the name to amend the by deleting “P.A.” move to amend the defec- the letters Plaintiff did not firm hearing until the on a motion dismiss on 11 June summons tive summons, plaintiff seeking have through to amend the the oral efforts January back to 11 1982.The amendments would have her relate all of prejudice to defendants in that the statute of limitations material constituted rights had intervened. The amend- and substantial of the defendants run had misnomer, attenipt correction of a but was an to add did not constitute ment party. as a new COURT OF APPEALS *2 2;§ 3. § Process serving general Rules of Civil 4— partner Procedure of law jurisdiction firm —no over law firm itself jurisdiction Plaintiff did not obtain over law serving firm itself a general partner in the law firm since the was summons not addressed to the partnership law firm as a but was corporation addressed to the law firm as a and general partner since the fact that a properly was named in the summons as an individual upon person defendant did not make service his sufficient process bring in a party not named as a in the summons. G.S. 4(b). 1A-1, Rule 1.2; § 4. Process § Rules of Civil Procedure 4— summons addressed to one in- upon dividual defendant served different individual defendant —no valid service process obtained comply statutory Plaintiff failed to with the rules for process service of necessary which were against obtain valid service and an in- defendant, Maready, dividual where a summons addressed to defendant C. Roger upon Maready. Harris was served 5.1; Attorneys § professional § at Law Rules of Civil Procedure 8.1— malprac- $10,000 controversy tice exceeding action —matter in properly state —failure relief demanded —failure to dismiss action —abuse of discretion judge A trial failing abused his discretion to allow defendant’s motion 8(a)(2) where, to dismiss for a violation of G.S. from a contextual whole, reading complaint original as a and from both the and amended relief, prayer complaint pleading for was a professional based malpractice monetary action which demanded against relief of 5 million dollars $10,000.00. stating controversy each defendant rather than that the exceeds Judge concurring part dissenting part. Webb Judge concurring part dissenting part. Arnold Appeal by plaintiff from Albright, Judge. Order entered 21 Court, June 1982 in Superior FORSYTH County. Heard in the Court of Appeals June 1983.
James, Diehl, Jr., McElroy & Diehl by William K. Holliday Katherine S. plaintiff appellant.
Brooks, Pierce, McLendon, & Leonard Humphrey by Hubert Humphrey appellees. for defendant
BRASWELL, Judge. Harris, client, Shirley The plaintiff being former sued Petree, Stockton, Robinson, law firm Glaze Vaughn, and Ma- ready, along with individual defendants W. F. Maready Petree, William H. for professional legal malpractice. July From firm, F.W. January principally through 1979 the law 1976 to 18 matters against in domestic Maready, Shirley Harris represented Harris, H. Because William former husband. Roger her defendant Petree, firm, involved Harris were Roger in the law a partner of interest a conflict enterprises, business independent in some its representation between the law firm and existed allegedly served, the defendants After Shirley Harris. Petree, special firm made a Maready, appearance and the law from appeals to dismiss. Plaintiff 1982 and filed a motion March the sum- dismissing filed 21 June 1982 of the trial court Order law firm “upon the defendant mons and *3 insufficiency of person, lack of over the jurisdiction of grounds dismissing insufficiency process,” of service of process, insufficiency Maready of “upon grounds individual and from insufficiency process,” of of service process of the summons oral motion to amend plaintiffs denial of law the summons to the “P.A.” from and to delete error for cross-assign law firm Maready and the firm. Defendants concerning pleading rule of the to dismiss for a violation failure Petree action. Defendant malpractice in a damages professional this individually now before and is not cross-assign error did by have deferred Harris been All matters as to defendant Court. until a later time. the parties basic of the case raises the crux plaintiffs appeal
On the as issues bear- summarized which are procedure of civil questions insufficiency of person, over the jurisdiction on lack of ing misnomer, proc- of insufficiency of service by or by substitution summons, and ess, amending without of amendment we subjects, each of these considering After of right. amendment the dismissal. and affirm arguments plaintiffs all of reject error, in the alter- cross-assignment the defendants’ On native, failing error committed the trial court we hold that 8(a)(2) 1A-1, violation of G.S. for plaintiffs in a damages professional in pleading Procedure Rules of Civil action, and reverse. malpractice interlocutory, judge is order trial court’s
Although under G.S. appeal on review for immediate the case certified that con- agree We Procedure. Rules of Civil Rule 54 of the postponed. not be raised should issues of the sideration COURT OF — The Law Firm Jurisdiction, Process and Amendments jurisdiction The trouble with process against the defend- ant law firm is that in both the original complaint summons and sued and party. served the Plaintiff sued a wrong “Petree, Stockton, Robinson, nonexistent corporation: Vaughn, Maready, P.A.” The is Glaze evidence uncontradicted that the firm, always its predecessor, law well as has been a partner- and has never been a association. ship professional
A brief recital of the course of of the pleadings events necessary to show the further dealings parties. On summons, January 1982 lawsuit with the began filing ap- and order time to file plication, extending complaint. On January 1982 complaint. filed her summons shows “Petree, Stockton, Robinson, 14 January service on 1982 upon Maready, P.A.” Vaughn, by leaving copies Glaze & with “William (General Partner).” Delayed H. Petree original com- mail, Lawson, plaint signed made certified Bonnie February 1 March 1982 the On defendants made their special ap- and filed an motion to dismiss pearance alleging, extensive among a lack of things, person. other over *4 4 March 1982 filed an amendment to her com- On court, without leave of that it was plaint maintaining done as a 15(a) right matter of under G.S. Rule of the Rules Civil Procedure. The amendment to cure the professed procedural 1A-1, and also the process defects and G.S. 8(a)(2) violation in the 5 1982 original complaint. April On defend- ants filed a motion to dismiss and to strike the amendment to the comjplaint. the parties sought
The amendment to the as to to accomplish following things: from designation
1. To delete the “P.A.” of the caption party-defendants, and
2. To delete 5 and make this substitution: paragraph informed,
“5. Plaintiff is believes and therefore alleges Stockton, Robinson, Petree, that the law firm of Vaughn, OF COURT Maready (hereinafter Petree, Stockton law ‘the Glaze and firm’) lawyers under and general partnership existing is a Carolina, having of North virtue of the laws of state of business Winston- principal place its sole office Petree, Salem, North Stockton Forsyth County, Carolina. law firm of Hud- law firm is son, successor in interest Petree, Stockton, Stockton and Robinson. informa- Upon belief, a partnership tion the former law firm was also general Petree were which Defendants and/or belief, Petree, partners. Upon senior information of the law firm or received all of assets Stockton acquired of the and assumed all the liabilities former partnership into ex- firm the time it came law at former istence.” Albright W. con- Douglas 10 and 11 June 1982 Judge
On motions, and filed a for- rulings, all oral on made hearing ducted a 1982. mal order on June
[1] Even if purported amendment were to be allowed, it of party-defendants at most a substitution would constitute served, a new party who has never been a party create Any as of run. amendment of limitations has make, whom the statute Barnes, amend, Camlin v. process. March 1982 would (1858). (5 Jones) 296, made the even more point Camlin ground, put it “We our decision when added: explicit in a new necessary bring to issue new is whenever it defendant, exceeds an something which amounts to the operation amendment, has in which the word signification broadest ask has no power at The court used.” Id. 297. been ever been sued nunc having ‘consider himself “the defendant new made and had been In Camlin a motion Id. tunc.” pro partner of a deceased in the administrator bring denied had been a never partner where the intestate in case to the action. party we have found which value precedential case closest *5 716, Brothers, 231 N.C. v. Grannis Membership Corp.
Electric
(1950).
“Gran-
corporation,
a nonexistent
Plaintiff sued
2d 748
S.E.
and
Bros.,
of summons
service
obtained
nis
Inc.” and
part-
in a three-person
was general partner
who
K. Grannis”
“C.
Sloan,
Grannis,
Mary McLeod.
G.
K.
and
K.
nership of C.
COURT
OF
special
defendants made a
appearance and moved to
jurisdiction
lack of
over the partners or
It
un-
partnership.
was
Bros.,
contradicted that
Grannis
Inc. was
nonexistent corpora-
tion and that
the defendants had
times
at all
traded
the
under
firm name of “E. W. Grannis
Supreme
Co.” The
Court recognized
rule,
the general
“that
quoting
doing
where individuals
are
business as
under
partners
a firm
name
such firm is de-
action,
scribed or
in an
designated
corporation,
as a
proc-
ess is served on a member of the
partnership,
members of the
may be
partnership
by amending
substituted
the process and
719,
allowing the
be
Id. at
pleadings
amended.”
58 S.E.
2d
Nevertheless,
750.
the Supreme
held under the
Court
facts above
“the
have
plaintiff
entitled
the partnership
substituted as the defendant
corporation
lieu of the
under the
theory or
doctrine
misnomer.
Substitution
the case
aof
misnomer is not considered
new parties,
substitution of
but a cor-
rection in the
description
party
actually
or parties
served.”
Id. at
[2] Because G.S. 4(i) the Rules summons, we will scrutinize Civil Procedure it. This rule grants discretionary trial power judge amended, any “allow or process proof of thereof to be unless clearly it appears prejudice material would result substantial rights party against whom the process issued.” Here, the did not plaintiff move to amend defective summons until the motion on 11 hearing on the to dismiss June 1982. As set out in Judge Albright’s Order:
5. rul- Following announcement Court of the above, ings orally set forth counsel moved through to amend the summons served the defendant W. F. Ma- upon ready by deleting name Harris” Roger inserting “C. Maready,” in lieu name thereof the “W. F. to amend the summons deleting the law firm the letters alternatively “P.A.” or to treat letters as surplusage, these which motions are denied. summons,
Through these efforts to amend the oral to 11 January to have her back seeking all relate *6 OF APPEALS COURT Harris v. his judge not abuse discretion
We hold that the trial did summons. The to amend denying plaintiffs oral motion material prejudice amendments would have constituted had run and The substantial defendants. statute of limitations Membership had intervened. Electric rights the defendants Brothers, v. The supra. Grannis defendant’s motion Corp. timely been a had made through special appearance 18 January ran on March 1982. The statute limitations attorney-client years relation- three from termination of 18 January 1979. ship on
By
we
motion to amend the
analogy,
also note that the oral
an
an
pluries
be
as
alias or
summons or
summons cannot
treated
as
back and
by the Clerk so
to relate
overcome
endorsement
Alias,
are
pluries
and endorsed summons
statute
limitations.
an
time frame to prevent
for
service within
extended
good
later
only
as
running
parties
statute
from
of limitations
correctly
as
actually
parties
are
who
denominated
process.
original
relating
A
back
similar case
denied an amendment
which
(1954).
785,
McLean
Matheny
B. Matheny,
W.
as
Mo-
trading
McLean
sued
originally
error,
discovery
plaintiff tried to have
Company.
of his
Upon
tor
Ma-
show
defendant to be
amendment which would
the true
an
theny
corporation
a
The
neither
Company,
corporation.
Motor
appearance,
a
change
general
nor made
consented to the
from
date
a new cause of action
the amendment created
hence
statute of limitations.
which was barred
of amendment
misnomer,
but
did not
correction
amendment
constitute
new
Id.
party.
as a
corporation
add the defendant
attempt
an
787,
To counter
further
plaintiffs
contention that
the amended
complaint designated the
as a
party-defendant
cou
pled
prior
with
service
an
process upon
individual who was
a member of the partnership,
that the partnership received actual
them,
knowledge
plaintiffs
intent
sue
these things
service,
in combination should be treated as
we refer
proper
242,
(1938).
Pearlman,
240,
789,
Hogsed v.
213
195 S.E.
N.C.
790
Supreme
Hogsed
Court
considered similar
points
raised
(1931)
582,
earlier in Jones v.
200
Vanstory,
In the last
named
which individuals were sued and
it was
amendment
sought
bring
the corporation with
were
which
individuals
connected without
the issuance
and service
summons on the corporation,
it was held that
corporation
could
be
into court “in this
brought
short-
hand manner
amendment” without
of process.
service
added.)
(Emphasis
Where there is an amended summons which does add a new
new
party-defendant,
summons must be served
each of
Creekmore,
49,
Bray
the new defendants. See
v.
13 S.E.
N.C.
(1891).
In
with the law of
keeping
recently
our court
Hogsed, supra,
held that actual notice of a
inadequate
lawsuit was
and that
of process requirements
4(j)
of G.S.
Rules of
Procedure
mandatory
Civil
were
when it dismissed for
insufficiency of process
Turkeys,
the case of Park v.
Creek
Sleepy
(1983).
Park,
The
cites Wiles v. Construction
(1978),
Wiles,
plain-
In
the
controlling.
disagree.
S.E. 2d 756
We
defendant,
only
“Welparnel
tiff sued
one
a
Construc-
corporation,
Inc.,” and so
it
in the
of the
caption
tion
named
Company,
“Mr. T. T.
directory
of the summons was to
part
summons. The
Nelson,
Agent,
Company,
Construction
Registered
Welparnel
Attorneys
T. T. Nelson.
was had upon
Inc.” Service of process
extensions of time to file
the
defendant obtained
corporate
answer,
ap-
thus
subsequently
making
general
answer and did
us,
firm has not
In the case before
law
the
pearance.
no
appearance,
appearance,
made a
but a
general
special
has been filed for the partnership.
answer
its con-
in Wiles
on to reevaluate
Court
went
Supreme
sufficiency
corporate
of service of process
sideration of the
or “Presi-
was
for”
“Agent
when
addressed to
process
defendants
in-
the
noted that
The court
corporation.
of’ a named
dent
“[i]n
case,
Inc. was
Company,
properly
Construction
Welparnel
stant
caption
as well as in the
in the complaint,
defendant
named as the
summons,”
error before it
only alleged
and that
the
of the
of
here is asserted to be defective is the direction
process
“the
rather
than
corporation’s registered agent
the summons
84,
the
Id. at
App.
2d
disc. rev.
(1980),
S.E. 2d 394
also
In
supports our decision.
Crawford
summons and complaint named one of the defendants as “Mich
Tool
A
igan
Company,
Corporation.”
Division of
Service
Ex-Cell-O
fact,
was upon Michigan Tool
In
these were two dif
Company.
“ ‘Michigan
ferent
Our
companies.
upon
court held that service
Co., A
Division of
is not service on
Corporation’
Ex-Cell-O
TOOL
entity
if the
sum
Corporation
Ex-Cell-O
even
mons reach the hands of
obligated
someone
receive service
370,
essence,
behalf of
Id.
no
Ex-Cell-O.”
The defendant law firm right had a substantial to make and not to special appearance respond merits of the com- be unless it first made a to law. It plaint proper party according is more than a mere nominal It involves the right. jurisdic- court’s may tion to some look this as proceed judgment. upon Because technicality, it is remember appropriate a surface the words Midland English jurist Colliery & Silkstone Chesterfield Hawkins, (1865), (2d Co., 3 H. in 5 quoted Ltd. v. & C. as Butterworths, ed. Legally Words Phrases Defined 1970): London
“A technical rule of law is invoked on behalf of A technical is one which is established rule [defendants]. authority precedent, depend upon which does reason- but is a to be acted ing argument, or fixed established rule only its truth regards application discussed —in is ‘the law’.” Discretion cannot be a Sufficiency jurisdictional. ruling or court’s on a motion appellate basis for a trial court An amended com- person. for lack of over the *10 of not right, deemed done as a matter does even where plaint, for, in or correct an error a summons relate back or substitute which has never been amended. COURT OF Maready
North Corporation Carolina enacted its Professional Act in 1969, 55B-1, seq. G.S. et Use of the “P.A.” in the cor- designation by name is authorized 55B-5. The porate particulars G.S. formation of “a set professional are out G.S. 55B-4. corporation” In the case before us the as a plaintiff designated party-defendant a summons and professional corporation original original any No has ever been named in summons. complaint. partnership upon “general partner” who is a purported partner in a that is named as a defendant cannot bring 242, the 790, As was said in 195 S.E. at partnership. Hogsed, supra, by “The this motion not to correct a seeking in the of a to show the of a party, mistake name nor true name when omitted], there was a misnomer but to add party [citations by who has been party substitution as a defendant one never with While sued served summons. the individual had doing years been business several the institution prior for action and organization using this prior corporation, a name similar to that the latter was a new corporation, added.) .” . . . It avails the separate entity (Emphasis plain- present tiff law firm is a successor of another nothing partnership.
The defendant’s motion to on March 1982 was roadmap deficiencies exist- equivalent giving run, in her Now that the statute of limitations has ing pleadings. firm, a allow partnership, it is to the defendant law prejudicial any parties. of this to constitute a revision of process construction to the defendant firm to allow the injustice plain- It would be an by “one more turn at bat.” As concluded our Court Stone v. tiff 66, 67, (1980), Hicks, “While it is 262 S.E. 2d App. counsel, of a lawsuit is not a between game true that the conduct in order to the court give must be sufficient the parties.” over Maready Against W. F. Problems
Process [4] The issue is: Was Maready with summons? The facts was issued January naming on 11 1982 a summons show that individually. January 1982 a summons ad W. F. On Maready. was served Roger to defendant C. Harris dressed mail, certified Delayed service of Lawson, au- only, “Bonnie delivery signed to addressee *11 Maready Harris v. It is that receipt illegible. undisputed
thorized Date is agent.” Maready to W. F. has ever been personally no summons directed served him. upon defendant Harris’ sum-
What officer served happened? summons, only A Maready. yellow upon copy mons Maready W. F. was di- to and served presented summons Board, Harris, of the United Roger rected to Chairman “C. Bank.” Citizens service, of proper of the presumption possibility
To rebut Maready Mr. three affidavits. presented supporting proper in the brief that the presumption has conceded However, that the defect is argues has been overcome. latent, checked the case file at Maready if the defendant had that a summons directed he could have seen the courthouse Hicks, file, supra, of Stone v. him in the and that the cases was (1974), 225, Kerns, cited 203 S.E. 2d v. 285 N.C. and Philpott defendant, proc- for reasons about disagree not We apply. do earlier, reasons. for these additional discussed ess court- file at the check the case required No defendant is Yet, reveals that the record properly if he is served. house to see sum- verify service of checked the court file to had if plaintiff Maready mons, yellow copy have seen that she could summons, in the was still copy, as the defendant’s designated Maready. is stipulated thus delivered file —and [“It court Maready to W. F. re- directed of the summons yellow copy that a 67, Stone, at 262 S.E. 2d at In supra, in the mains Court file.”] 319, the individual defendants not served on were the summonses serving the officer Apparently, directed. they to whom were pa- defendant’s opposite of two defendants each papers gave listed as a party he was knew Each defendant pers. lawsuit, not suf- as served was our held that the but court Philpott, In parties. over the the court give ficient to it was not directed in that patently was defective the summons Vehicles of Motor but to the Commissioner the defendants 228, 203 Philpott, supra, on the only Commissioner. was Maready patently The summons as served 2d at S.E. defective, Harris, from person a different being defect. cures the in this record nothing con the liberal rule an application contends Plaintiff misled, in Wash as discussed whether cerning COURT OF APPEALS Blount, 438, 440, v. ington County 31 S.E. 2d (1944), should be We applied. disagree and find that the facts are *12 substantially different. In Washington County, the summons was properly directed the defendants. The defects were that the copies served were not by dated or the signed Clerk. The court said that the material information contained in original the “[a]ll summons in the appeared copies served on the defendants.” Id. Here, we deem it more than an irregularity when the summons does direct or command the person served as a named defend ant to be or to appear and answer. Roger C. Harris and individuals, Maready W. F. are two distinct Maready is not by law to answer or required respond to a summons served on him, but Roger directed C. Harris.
We hold plaintiff that the has failed to with the comply statutory necessary rules for service of which are to ob- tain valid service and W. F. against Maready in- dividually. 8(a)(2)
The Violation of Rule [5] By cross-assignment of error the defendants argue that the by trial court erred denying ground motion to dismiss on the 8(a)(2) violated G.S. plaintiff Rule of the Rules of Civil by wrongfully Procedure in the pleading damages complaint. This is an alternative for dismissal within the ground defendants’ mo tion of 1 March 1982. The trial court ruled: finds Although Court and determines 8(a)(2)
Complaint violated Rule of the Rules of Civil Procedure clearly . . . denies unequivocally Court the motion ... . . . ground. said 8(a)(2) states as a rule of that: general pleading all . professional actions . . wherein the mat- malpractice [I]n ($10,000), controversy ter in exceeds . . . thousand ten dollars relief, monetary shall not for pleading state the demand but shall state that is for in- damages the relief demanded curred or to be incurred in excess of ten thousand dollars ($10,000): Provided, any . . . statement of “the amount monetary sought” relief which is served on an opposing party may be in the manner and at the time provided amended added.) 1A-1, Rule 15. (Emphasis G.S. 15 rule, a demand contains complaint
In violation of this money damages” against “$5 relief for as prayer for million firm, legal from the “arising defendants the law Third, Fourth, First, Second, ... claims malpractice added.) Also, plain- Complaint.” (Emphasis Seventh Counts of this “all $5 recovery damages against seeks of million punitive tiff defendants.”
Also, labels body complaint plaintiff paragraphs in the $5 sues for In “Damages.” paragraph 77 and all defendants. In paragraph general damages million all defendants. punitive damages against $5 she seeks million aas matter purported to amend her only deleting offending parts on March right *13 “a sum in excess of substituting for relief and prayer the $10,000.00” damages and damages punitive in the general both relief, amended, 1 as of the for paragraphs. Paragraph prayer However, claims.” says arising legal malpractice from “damages 77 and change paragraphs amended did not complaint plaintiffs face, Thus, remains its action complaint. 78 the original of defendants, monetary relief a claim and demand for as all against wit, $10,000 $5 in still million value of in excess of the [to 77 and wording paragraphs and From the paragraphs 78]. aas reading complaint a of the from contextual complaint, relief, whole, original prayer and amended and from both the mal- upon professional a based pleading remains against five million dollars monetary relief of demanding practice, each defendant. S.E. 2d App. v. 60 N.C. Boyce, find Jones We that 8(a)(2), (1983), interpreted has Rule only case which to date Jones, ac- attorney malpractice an issue. In dispositive
is tion, on this as million dollars for one complaint prayed plaintiffs dam- punitive and million dollars damages two compensatory pleading, plaintiff responsive had served a defendant ages. After and allegations ad damnum amend the by motion to sought abuse its court did not held the trial Our court denied. in dismissing motion to amend denying discretion 41(b) 8(a)(2) Rule Rule entirety, related it action its Rules of Civil Procedure. Maready Whichard, Jones, out pointed for our Judge writing Court 8(a)(2), Assembly enacted G.S. General professional a crisis in the area of response perceived study A thereon recom- liability insurance. commission clause in professional mended “elimination the ad damnum prior cases avoid adverse attention malpractice press [to] trial, harm which can re- thus save from the reputations suits reading huge malpractice sult from about persons money de- own conclusions based on the drawing their manded.
Jones,
587,
We hold that of Rule motion to dismiss for violation to allow the defendant’s 8(a)(2). us, been the action should have the facts before On W. F. entirety the defendants in its dismissed Robinson, Petree, Stockton, Maready, & Vaughn, Glaze partnership. is dismissed as to are that the entire action results firm of W. F. and as the law
individual Stockton, Robinson, Petree, Maready, a partner- Glaze & Vaughn, ship. s and is as to the plaintiff appeal below is affirmed
The order error. cross-assignment to the defendants’ reversed as *14 in part. in and dissent part and Webb concur Judges ARNOLD in dissenting part. concurring part Judge WEBB it error not to that was majority’s holding I from the dissent 8(a)(2). I believe violating for G.S. the action ordering was within its discretion Superior Court (1983) 299 S.E. 2d Boyce, App. Jones v. dismissal. the violation of this an action for error to dismiss held it was not is error not to dismiss that case holds it I do not believe rule. other majority on the I vote with the the rule. a violation of of the case. aspects City Wilmington
Trask v. Judge concurring part dissenting part. ARNOLD, I concur in holding plaintiffs action should have been 8(a)(2).However, dismissed for violation of Rule I respectfully dis- part sent from that of the opinion holding sued and served the wrong party. is true always
It that the defendant law firm has been a part- nership and never a corporation. It also true that plaintiff firm, Petree, Stockton, Robinson, meant to sue the law Vaughn, Maready. Glaze and A was even summons on “William H. (General Partner)” Petree as is pointed majority. out Under the facts of this case could be possible there no misunderstanding as to the of the party exactitude my sued. In being identity view the of the defendant was suffi- ciently stated to law firm bring the within the trial court’s jurisdiction. common sense which our reasoning Supreme reached its result in Wiles seems to apply Court facts of I case. would reverse as plaintiffs appeal. this TRASK, TRASK, McCARTY, ALEX M. ALLEN N. ANNE GEORGE RUTH GORE, POLLARD, FARLOW, TRASK WILLIAM JOHN JIM KNOX TRASK, COMPANY, DAVIS, PINE VALLEY WATER L. T. SUNSHYNE DAVIS, TYNER, TYNER, TYNER, JACQULINE L. JAMES CHARLES TYNER, SEVERT, SEVERT, BRYANT BERLINE JANE CHARLES REAVES, REAVES, SMITH, SMITH, FLOYD GEORGIE HAZEL LUCILLE ELLIOTT, ROURK, ROURK, PREVATT, WILLIAM A. ETHEL HORACE PREVATT, SCHELLER, SCHELLER, MARY BRUCE CHARLES GRACE CRABBS, CRABBS, STRICKLAND, LINDA RUPERT NANCY STRICK BARFOOT, LAND, BARFOOT, BARFOOT, MILDRED LEON STEVE BARFOOT, BARFOOT, BARFOOT, TERESA WILBER B. MINNIE EARL N. OXENDINE, OXENDINE, OXENDINE, LENA A. DELTON JAMES OXEN DINE, OXENDINE, LONG, LONG, SAMUEL VER DOROTHY DORENDA DUNCAN, DUNCAN, MILLIGAN, TISE KENNETH GRACE JEAN MILLIGAN, FOUNTAIN, FOUNTAIN, K. SALLY TRAVIS LUTHER MINCEY, MINCEY, NEAL, NEAL, EDNA BLANNIE BILL ROB JOHN COOMBS, ERTS, WILLIAMSON, LEE MARY JOSEPH ROY CHARLES COOMBS, COOMBS, COOMBS, LEE LOUIS MAGGIE D. ARTHUR WILLIAMS, RAMSEY, RAMSEY, WIL ALICE ROBERT J. EULENE PARKER, SMITH, LIAMS, PARKER, M. D. ALLIE MAY JOE CARL LYYOD, SPELL, NEAL, NEAL, ISABELL KELLEY JAMES G. JESSIE CLEMMONS, CLEMMONS, SPELL, THELMA JOHN HENRY GLADYS BRYAN, BRYAN, MINTZ, MINTZ, HELEN FLOSSIE MAGGIE RHODNEY *15 NEWKIRK, FUTRELLE, WILLIAMS, BERRY ELIZ- MRS. BRYAN LEON