{
  "id": 8521025,
  "name": "J. THOMAS BROWN, JR., Administrator of the Estate of Randolph Hendricks, Deceased v. RANDY SHERWOOD OVERBY",
  "name_abbreviation": "Brown v. Overby",
  "decision_date": "1983-03-15",
  "docket_number": "No. 828SC395",
  "first_page": "329",
  "last_page": "331",
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      "cite": "61 N.C. App. 329"
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "cite": "225 S.E. 2d 329",
      "category": "reporters:state_regional",
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      "year": 1976,
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          "page": "331-332"
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      "year": 1976,
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          "page": "569"
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  "last_updated": "2023-07-14T21:13:54.976609+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Whichard and Braswell concur."
    ],
    "parties": [
      "J. THOMAS BROWN, JR., Administrator of the Estate of Randolph Hendricks, Deceased v. RANDY SHERWOOD OVERBY"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nAll of defendant\u2019s assignments of error raise the one question of whether service by publication on 16 September 1981 revived an otherwise discontinued action. The chronology of events heretofore set out discloses that the last alias and pluries summons, issued on 23 April 1981, was not served within 90 days, so the action was discontinued pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 4(d), (e). Stated differently, the only question raised on this appeal is whether the commencement of service by publication pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j)(l) is sufficient to satisfy the requirements of N.C. Gen. Stat. \u00a7 1A-1, Rule 4(e), which allows that, \u201cthe action shall be deemed to have commenced on the date of such issuance . . .\u201d after the original action has been discontinued.\nWe are constrained to hold that the present case is controlled by Byrd v. Watts Hospital, 29 N.C. App. 564, 225 S.E. 2d 329 (1976), wherein the facts are practically identical. In Byrd, service by publication was made on one defendant over 90 days after the previous summons to him had been issued and returned unserved. Default judgment was entered against that defendant when he did not appeal. The Court of Appeals reversed for insufficiency of service of process. In writing for a unanimous panel of this Court, Judge Britt stated:\n. . . here, the action had abated at the time plaintiff attempted service by publication. Before plaintiff here could obtain service by publication he first had to revive the action, and that revival could be accomplished only by the issuance of alias or pluries summons or endorsement of the last valid summons.\n. . . We think Rule 4(e) mandates that something be done in the clerk\u2019s office to revive a discontinued action \u2014 obtain an alias or pluries summons or an endorsement to the original summons. (Emphasis in original.)\n29 N.C. App. at 569, 225 S.E. 2d at 331-332.\nThe order appealed from is reversed.\nJudges Whichard and Braswell concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Duke and Brown, by John E. Duke, for the plaintiff-appellee.",
      "Dees, Dees, Smith, Powell & Jarrett, by William W. Smith and Tommy W. Jarrett, for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "J. THOMAS BROWN, JR., Administrator of the Estate of Randolph Hendricks, Deceased v. RANDY SHERWOOD OVERBY\nNo. 828SC395\n(Filed 15 March 1983)\nRules of Civil Procedure \u00a7 4\u2014 alias and pluries summons unserved \u2014 action discontinued-service by publication \u2014 no revival of action\nWhere the last alias and pluries summons, issued on 23 April 1981, was not served within 90 days, the action was discontinued pursuant to G.S. 1A-1, Rule 4(d) and (e), and plaintiff\u2019s service of process by publication beginning on 16 September 1981 did not revive the action.\nAPPEAL by defendant from Llewellyn, Judge. Order entered 1 March 1982 in Superior Court, Wayne County. Heard in the Court of Appeals 17 February 1983.\nThis is a civil action wherein plaintiff, the administrator of the estate of Randolph Hendricks, seeks to recover damages for the wrongful death of his intestate. Following entry of default against defendant, a trial was held and judgment was entered setting damages at $10,000.00.\nThe record discloses the following chronology of events: On 27 September 1979, Randolph Hendricks, a 63-year-old pedestrian,was struck by an automobile allegedly operated by the defendant. Hendricks sustained severe injuries from the collision and died three days later. Plaintiff filed this wrongful death action against defendant on 12 September 1980. The summons issued that same day was returned unserved by the sheriff bearing the notation \u201cRandy Sherwood Overby has moved.\u201d Alias and pluries summonses were issued thereafter on 30 October 1980, 15 December 1980, and 23 April 1981, and each was returned unserv-ed because the sheriff was unable to locate the defendant. Service of process by publication then was attempted by notices appearing in the Goldsboro News-Argus on 16 September, 23 September, and 30 September 1981. Plaintiff\u2019s attorney filed an affidavit on 6 November 1981 showing that \u201cservice by publication was necessary due to the fact that the plaintiff did not know defendant\u2019s whereabouts; that a publisher\u2019s affidavit has been filed.\u201d An entry of default was made by the Clerk of Superior Court of Wayne County on 6 November 1981 because of the defendant\u2019s failure \u201cto plead.\u201d Thereafter the case was duly calendared for trial and a default judgment awarding plaintiff $10,000 in damages was entered against the defendant. On 9 and 10 February 1982, the defendant filed the following motions: (1) to quash the \u201cpurported\u201d service of process by publication on grounds that the action had been discontinued before the attempt to serve him by publication and that the defendant\u2019s \u201cusual place of abode . . . could, with due diligence, be ascertained\u201d; (2) to dismiss the action for insufficiency of service of process on the same grounds; (3) to set aside the entry of default for lack of jurisdiction \u201cfor the reason that process was not served on Randy Sherwood Overby [the defendant] in accordance with Rule 4 of the Rules of Civil Procedure\u201d; and (4) to set aside the entry of default, entry of judgment, and default judgment for lack of jurisdiction, because the plaintiff failed to file a bond as required by Rule 55(c), and because the defendant was unaware the plaintiff had attempted to serve him by publication.\nFrom an order denying all of these motions, defendant appealed.\nDuke and Brown, by John E. Duke, for the plaintiff-appellee.\nDees, Dees, Smith, Powell & Jarrett, by William W. Smith and Tommy W. Jarrett, for the defendant-appellant."
  },
  "file_name": "0329-01",
  "first_page_order": 361,
  "last_page_order": 363
}