162 S.E. 903 | N.C. | 1932
On 9 March, 1923, the defendants executed and delivered to Gertrude H. Coward their promissory note under seal for $2,000 payable 9 March, 1924, and on 19 August, 1931, the plaintiffs brought suit to recover the amount due thereon. On 21 September, 1931, no answer having been filed, the clerk of the Superior Court, in accordance with the regular practice and procedure, gave judgment against the defendants in the sum of $2,000 with interest from 9 March, 1929, and the costs of the action. On 18 December, 1931, the defendant Clara J. Forbes notified the plaintiffs that she would make a motion before the judge presiding in the Superior Court on 18 January, 1932, to set aside and vacate the judgment. Her affidavit set out as grounds of her motion the failure of the officer to serve her with process and the failure of the clerk to sign the summons before it was delivered to the officer.
From the evidence introduced the judge found the facts and set them out in the judgment. Clara J. Forbes averred that no summons had ever been served on her in the cause, while the plaintiffs relied upon the officer's return on the summons together with an affidavit of the deputy sheriff that he read the summons to her and left with her a copy of the summons and complaint. The court found that proper service of process had been made.
In reference to issuing the summons the finding is this: "A summons was duly issued out of the office of the clerk of the Superior Court in favor of the plaintiffs and against the defendants in the action on 19 August, 1931, and at the time of the issuance of said summons the plaintiffs duly filed a verified complaint, and at the time the said summons was filled out W. H. Woodard, vice-president of the Greenville Banking *366 and Trust Company, one of the executors, requested the clerk not to hand the summons to the sheriff until his co-executor could come in and verify the complaint and sign the bond, and on the same date thereafter W. E. Hooker, the other executor, came into the clerk's office, verified the complaint and signed the bond; and thereupon the clerk of the court carried said summons and a copy of said summons and a copy of said complaint for each defendant to the sheriff's office and delivered same to the sheriff or his deputy; and then and there the clerk himself directed the sheriff or his deputy to serve the same upon the defendants, paying to the sheriff his fees for said service; that by oversight the clerk failed to sign said original summons."
It was adjudged that the service of process upon the defendants was valid, that the clerk sign the summons nunc pro tunc, and that the motion to set aside the judgment be denied. Clara J. Forbes excepted and appealed.
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,
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. C. 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 such 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., 547. 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,
In Henderson v. Graham,
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 Mecklenburg 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,
It has been held that process issued to another county without a seal is void (Taylor v. Taylor,
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.
