{
  "id": 8526446,
  "name": "WALTER W. SIGMAN, JR. v. R. R. TYDINGS, INC., a corporation",
  "name_abbreviation": "Sigman v. R. R. Tydings, Inc.",
  "decision_date": "1982-11-02",
  "docket_number": "No. 815DC1428",
  "first_page": "346",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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      "year": 1982,
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          "page": "577-78"
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        {
          "page": "579"
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  "last_updated": "2023-07-14T18:55:54.350150+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judge HEDRICK and Judge WEBB concur."
    ],
    "parties": [
      "WALTER W. SIGMAN, JR. v. R. R. TYDINGS, INC., a corporation"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nThis is an appeal from the denial of defendant\u2019s Rule 12(b) motion to dismiss for insufficient service and lack of jurisdiction over the person. The issues on appeal are whether an alias and pluries summons may be issued when there was no attempt to serve the original summons, and whether a complaint may be amended before it is served.\nBeing bound by our Supreme Court\u2019s decision in Love v. Moore, 305 N.C. 575, 291 S.E. 2d 141 (1982), which was decided after the case sub judice was filed in this Court, we dismiss the appeal as interlocutory \u201ceven though the question of appealability has not been raised by the parties themselves.\u201d Love, 305 N.C. at 577-78, 291 S.E. 2d at 144.\nIt is true that G.S. l-277(b) allows an immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of defendant. In this case, however, as in the Love case, the \u201c[defendant's motion, although denominated as one challenging the court\u2019s jurisdiction over the person ... , in reality challenges the sufficiency of the service as contemplated by Rule 12(b)(5) and the sufficiency of the process as contemplated by Rule 12(b)(4).\u201d Love, 305 N.C. at 579, 291 S.E. 2d at 145. The following language from Love seems dispositive of this appeal:\nA challenge to the court\u2019s jurisdiction over the person, Rule 12(b)(2), concerns whether the court has power, assuming it is properly invoked, to require the defendant to come into court to adjudicate the claim, a test which has come to be known as \u2018minimum contacts.\u2019 Challenges to sufficiency of process and service do not concern the state\u2019s fundamental power to bring a defendant before its courts for trial; instead they concern the means by which a court gives notice to the defendant and asserts jurisdiction over him. C. Wright & A. Miller [Federal Practice and Procedure] \u00a7 1353. G.S. l-277(b) applies to the state\u2019s authority to bring a defendant before its courts, not to technical questions concerned only with whether that authority was properly invoked from a procedural standpoint. This is not a mere technical distinction; it has far-reaching substantive effect. If the court has no personal jurisdiction over the defendant, it has no right to require the defendant to come into court. A trial court determination concerning such an important fundamental question is made immediately appealable by G.S. l-277(b). However, if the court has the jurisdictional power to require that the party defend and the challenge is merely to the process of service used to bring the party before the court, G.S. l-277(b) does not apply.\nId. at 579-80, 291 S.E. 2d at 145 (1982).\nConsidering the pleadings, and specifically defendant\u2019s motion to dismiss, we hold, on the authority of Love v. Moore, that defendant\u2019s appeal is interlocutory and not immediately ap-pealable. The case is therefore remanded for the appropriate proceedings.\nDismissed.\nJudge HEDRICK and Judge WEBB concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Stevens, McGhee, Morgan & Lennon, by Robert A. O\u2019Quinn, for defendant appellant.",
      "Block & Trask, by Franklin L. Block, for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "WALTER W. SIGMAN, JR. v. R. R. TYDINGS, INC., a corporation\nNo. 815DC1428\n(Filed 2 November 1982)\nAppeal and Error \u00a7 6.1; Rules of Civil Procedure \u00a7 12\u2014 challenges to sufficiency of service of process \u2014 premature appeal\nAn appeal from the denial of defendant\u2019s Rule 12(b) motion to dismiss for insufficient service and lack of jurisdiction over the person was interlocutory and not immediately appealable. The issues on appeal were whether an alias and pluries summons may be issued when there was no attempt to serve the original summons, and whether a complaint may be amended before it is served, and under the decision in Love v, Moore, 305 N.C. 575 (1982) the appeal must be dismissed as interlocutory \u201ceven though the question of ap-pealability [was] not raised by the parties themselves.\u201d G.S. l-277(b).\nAPPEAL by defendant from Rice, Judge. Judgment filed 30 October 1981 in District Court, New HANOVER County. Heard in the Court of Appeals 19 October 1982.\nStevens, McGhee, Morgan & Lennon, by Robert A. O\u2019Quinn, for defendant appellant.\nBlock & Trask, by Franklin L. Block, for plaintiff appellee."
  },
  "file_name": "0346-01",
  "first_page_order": 378,
  "last_page_order": 380
}