{ "id": 8548041, "name": "DAVID LEE SIMMS v. MASON'S STORES, INC., (NC-1)", "name_abbreviation": "Simms v. Mason's Stores, Inc. (NC-1)", "decision_date": "1973-05-23", "docket_number": "No. 7329SC59", "first_page": "188", "last_page": "194", "citations": [ { "type": "official", "cite": "18 N.C. App. 188" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "188 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549655 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0383-01" ] }, { "cite": "195 S.E. 2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547293 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0089-01" ] } ], "analysis": { "cardinality": 504, "char_count": 12635, "ocr_confidence": 0.537, "pagerank": { "raw": 2.755712791342023e-07, "percentile": 0.8331066791924935 }, "sha256": "8e29edcdc39b62ca32253793b2ee4c553feff07f0afa59aaacc04d7a3eee78c8", "simhash": "1:b082716b2fa95d29", "word_count": 2118 }, "last_updated": "2023-07-14T21:14:36.293491+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Parker concur." ], "parties": [ "DAVID LEE SIMMS v. MASON\u2019S STORES, INC., (NC-1)" ], "opinions": [ { "text": "MORRIS, Judge.\nPlaintiff\u2019s 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 \u201canswer or otherwise plead ?\u201d\nWe turn first to the question dealing with the service of process. G.S. 1A-1, Rule 4(j) (6) provides:\n\u201c (j) Process \u2014 manner of service to exercise personal jurisdiction. \u2014 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:\n(6) Domestic or Foreign Corporation. \u2014 Upon a domestic or foreign corporation:\na. 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 agent with the person who is apparently in charge of the office; or\nb. 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.\u201d\nIn 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.\nUpon the facts before us, it is readily apparent that service was not made upon an officer, director, or managing agent of Mason\u2019s Stores, Inc. (NC-1). Nor was service effected by leaving process in the manager\u2019s 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 \u201cI might as well give these to you also.\u201d At best, the plaintiff\u2019s evidence shows that Deputy Penland asked if the manager of the store was present, and finding that he wasn\u2019t, 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.\nNor 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 to receive process. Wright and Miller, Federal Practice and Procedure: Civil, \u00a7 1101.\n\u201c . . . 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.\u201d 2 Moore\u2019s Federal Practice \u00b6 4.22 [1], p. 1116.\nThe 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\u2019s affidavit recited, in pertinent part, that:\n\u201c ... It has been my duty on several occasions to serve subpoenas on her (Vera Wallin) with regard to shoplifting cases in which Mason\u2019s Stores, Inc., was involved. ... I assumed, as a result of her appearing in court on behalf of Mason\u2019s Stores, Inc., and as a result of seeing her in the store on several occasions, that Vera Wallin was an employee of Mason\u2019s Stores, Inc....\u201d\nAt 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\u2019s Stores, Inc., and that Penland assumed Vera Wallin was employed at Mason\u2019s Stores, Inc. This evidence fails to meet the plaintiff\u2019s burden of showing the required specific agency to accept service of process.\nNor was service effected by delivering the process to an agent authorized to accept service by law. The phrase \u201can agent authorized ... by law to be served\u201d includes within its scope state statutes vesting authority in certain persons to receive process, agencies implied in law, and agencies by estoppel. 2 Moore\u2019s Federal Practice \u00b6 4.22 [1], p. 1118. We hold that plaintiff\u2019s evidence was insufficient to carry the burden of showing any statutory agency, agency implied in law, or by estoppel.\nSince there is no other effective statute providing an alternative method for service of process on Mason\u2019s Stores, Inc., we conclude that the attempted service of process upon the corporate defendant was ineffective and void, and that no jurisdiction over .the person of the defendant was- obtained thereby.\nPlaintiff 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\u2019s 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, \u201c[s] pedal appearances are-no longer necessary in any case. \u2018Rule 12 has abolished . . . the age old distinction between general and special appearances.\u2019 A voluntary appearance does not- waive the objection of lack of- jurisdiction over the person. . . . \u201d 2A Moore\u2019s Federal Practice \u00b6 12.12, p. 2324. The plaintiff\u2019s argument has been answered adversely to him in two prior decisions of this Court, and we hold that the plaintiff\u2019s 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).\nThe judgment of the trial judge, dismissing the cause for want of jurisdiction over the person of the defendant, is affirmed.\nAffirmed.\nJudges Britt and Parker concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Morris, Golding, Blue and Phillips, by James W. Williams, for plaintiff appellant.", "Uzzell and DuMont, by J. William Russell, for defendant appellee." ], "corrections": "", "head_matter": "DAVID LEE SIMMS v. MASON\u2019S STORES, INC., (NC-1)\nNo. 7329SC59\n(Filed 23 May 1973)\n1. Process \u00a7 12; Rules of Civil Procedure \u00a7 4\u2014 insufficiency of service on domestic corporation\nWhere the deputy sheriff for Buncombe County delivered the summons and complaint in this assault action to one Vera Wallin, a security officer who was standing near a cash register in defendant\u2019s place of business, whom the deputy had seen as a court witness for defendant, and on whom the deputy had served subpoenas on prior occasions, the attempted service of process upon defendant was void and the trial court did not obtain jurisdiction over the person of the defendant thereby, since Ms. Wallin was not an officer, director or managing agent of defendant\u2019s store, nor was she a person apparently in charge in the manager\u2019s office, an agent authorized to accept service by appointment or an agent authorized to accept service by law. G.S. 1A-1, Rule 4(j) (6).\n2. Appearance \u00a7 2\u2014 jurisdiction over the person \u2014 waiver \u2014 request for extension of time to answer\nDefendant did not make a general appearance and thus waive its defense of insufficiency of service of process and its objection to the jurisdiction of the court over the defendant\u2019s person when it moved for and obtained an enlargement of time in which to file answer or other pleading.\nAppeal from Fountain, Judge, 17 July 1972 Session of Superior Court held in Transylvania County.\nThis is a civil action commenced on 29 June 1971 for damages caused by an alleged assault on the plaintiff by the defendant\u2019s employee while acting in the course of his employment.\nOn 11 August 1971, upon defendant\u2019s motion therefor, the Clerk of Superior Court of Transylvania County entered an order extending the time to file \u201canswer or otherwise plead\u201d for an additional 30 days. Thereafter, defendant filed answer, denying the material allegations of the plaintiff\u2019s complaint, and setting forth as a \u201cFirst Defense\u201d the following motion:\n\u201c1. The defendant pursuant to Rule 12, N.C.R.C.P. moves to dismiss this cause of action or in lieu thereof to quash the return of the purported service of Summons issued, for that any purported service on the defendant is defective and void, and, therefore, the defendant has not been properly served with process in this action and this court has not acquired jurisdiction over the defendant.\u201d\nThe evidence at the hearing on the defendant\u2019s motion, consisting of an affidavit and supplemental affidavit of Vera Wallin, the affidavit of Deputy Sheriff Ervin L. Penland, and the testimony of Vera Wallin, tended to show the following facts:\nDefendant is a corporation with its place of business in Buncombe County, North Carolina. On 13 July 1971, Ervin L. Penland was employed as a Deputy Sheriff for Buncombe County, and at about 8:30 p.m. on that date and in the course of his duties, Deputy Penland undertook to serve the summons and complaint in this action on the corporate defendant at its place of business in Buncombe County.\nDeputy Penland\u2019s affidavit tends to show that as he entered the defendant\u2019s place of business, he saw Vera Wallin standing near a check-out counter near the entrance to the store, and, thinking that Vera Wallin was an employee of defendant, Deputy Penland approached her and inquired \u201cif the manager was in the store.\u201d Vera Wallin said that neither manager was in the store. Penland then asked Ms. Wallin \u201cif I could leave the summons and complaint . . . with her and if she would deliver the summons and complaint to the manager . . . She said that she would.\u201d Penland\u2019s affidavit also tended to show that he had \u201cassumed, as a result of her appearing in court on behalf of Mason\u2019s Stores, Inc., and as a result of seeing her in the store on several occasions, that Vera Wallin was an employee of Mason\u2019s Stores, Inc.\u201d\nVera Wallin\u2019s affidavits and testimony tend to show that on 13 July 1971, she was employed by Link Security, Inc., a corporation located in Danville, Virginia, as a security officer, and that on 18 July 1971, Ms. Wallin was assigned to the corporate defendant\u2019s store for the purpose of preventing shoplifting on the premises. In her capacity as security officer, Ms. Wallin was not under the supervision or control of any officer or employee of Mason\u2019s Stores, Inc., and was not authorized by appointment or by law to accept service of process on behalf of Mason\u2019s Stores, Inc.\nMason\u2019s Stores, Inc., had an office area located approximately 100 feet from the cash register area where Ms. Wallin was located on 13 July 1971. On that date one of the two store managers was on duty in the store. Deputy Penland approached Ms. Wallin and handed her a summons and complaint in another action. Then Deputy Penland stated, \u201cI might as well give these to you also,\u201d and delivered to Ms. Wallin a copy of the summons and complaint in this action. During this time Deputy Penland made no inquiry concerning the whereabouts of the store manager or any other person in charge of the store office. On the next day, Ms. Wallin handed the summons and complaint to the corporate defendant\u2019s store manager.\nUpon the evidence presented, the court made findings of fact that:\n\u201cOn July 13, 1971, . . . Vera Wallin was not an officer, director or managing agent of defendant Mason\u2019s Stores, Inc. (NC-1), and she was not a person who was apparently in charge of any such office.\nCopy of the summons and complaint were not delivered to an officer, director or managing agent of defendant, nor was copy thereof left in the office of such officer, director or managing agent of defendant with a person who was apparently in charge of the office.\u201d\nThe trial judge concluded that the service of process was fatally defective and void and that no jurisdiction over the person of the defendant had been acquired. Judgment was entered, dismissing the action against the defendant. Plaintiff appealed, assigning error.\nMorris, Golding, Blue and Phillips, by James W. Williams, for plaintiff appellant.\nUzzell and DuMont, by J. William Russell, for defendant appellee." }, "file_name": "0188-01", "first_page_order": 212, "last_page_order": 218 }