{
  "id": 8563046,
  "name": "VIOLA PHILPOTT v. ALLEN F. KERNS and JEAN KERNS",
  "name_abbreviation": "Philpott v. Kerns",
  "decision_date": "1974-04-10",
  "docket_number": "No. 42",
  "first_page": "225",
  "last_page": "229",
  "citations": [
    {
      "type": "official",
      "cite": "285 N.C. 225"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "197 S.E. 2d 595",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1973,
      "opinion_index": -1
    },
    {
      "cite": "18 N.C. App. 663",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
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      "year": 1973,
      "opinion_index": -1,
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    {
      "cite": "203 S.E. 2d 769",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "153 S.E. 2d 770",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 1967,
      "pin_cites": [
        {
          "page": "772"
        },
        {
          "page": "774"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "270 N.C. 91",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8565444
      ],
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/nc/270/0091-01"
      ]
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  "last_updated": "2023-07-14T22:42:08.335271+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "VIOLA PHILPOTT v. ALLEN F. KERNS and JEAN KERNS"
    ],
    "opinions": [
      {
        "text": "SHARP, Justice.\nThe Court of Appeals correctly held that the court acquired no jurisdiction over defendants by the service of the summons issued in this case upon the Commissioner of Motor Vehicles. Under G.S. 1-105 (1973 Supp.) in any action for damages against a nonresident which grows out of his operation of a motor vehicle upon the public highways of this State summons may be served upon the nonresident by leaving a copy thereof with the Commissioner of Motor Vehicles and transmitting a copy to the defendant by registered mail. The required contents of a summons are set out in G.S. 1A-1, Rule 4(c), and one of the essential requirements is that the summons \u201cshall be directed to the defendant or defendants/'\nThis summons was patently defective in that it was not directed to defendants but to the Commissioner of Motor Vehicles, who was \u201csummoned and notified to appear and answer\u201d the complaint within thirty days after service. The contents of this summons do not differ materially from the one which we considered in Distributors v. McAndrews, 270 N.C. 91, 153 S.E. 2d 770 (1967). In Distributors we said:\n\u201cThe provisions [of G.S. 1-105] are in derogation of the common law and must be strictly complied with. . . . \u2018Actual notice given in any manner other than that prescribed by the statute cannot supply constitutional validity to it or to service under it.\u2019 \u201d Id. at 94, 153 S.E. 2d at 772. . .\n\u201cThey [defendants] did not make a general appearance, and summoning the Commissioner of Motor Vehicles was of no avail. Thus the court obtained no jurisdiction of the persons of the defendants.\u201d Id. at 97, 153 S.E. 2d at 774.\nG.S. 1-105 as presently written became effective 1 January 1970. However, differences in the wording of the statute before and after that date are not material here. The decision in Distributors states the law applicable to the summons in this case. There is, however, a material difference between the facts in Distributors and the facts of this case.\nDefendants in this case, before asserting their defense that the court had obtained no jurisdiction over their persons by answer or pre-answer motion as provided by Rule 12(b), (g), and (h) (1), secured an enlargement of time in which to plead. By so doing they made a general appearance, thereby submitting themselves to the court\u2019s jurisdiction and obviating the necessity of any service of summons. Simms v. Mason\u2019s Stores, Inc. (decided contemporaneously herewith), ante, 145, 203 S.E. 2d 769 (1974).\nThe Superior Court erred in dismissing this action for want of jurisdiction over the person of defendants. The decision of the Court of Appeals affirming its judgment is\nReversed.",
        "type": "majority",
        "author": "SHARP, Justice."
      }
    ],
    "attorneys": [
      "Pearson, Malone, Johnson & DeJarmon by W. G. Pearson II and W. W. Perry for plaintiff appellant.",
      "Haywood, Denny & Miller by George W. Miller, Jr., for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "VIOLA PHILPOTT v. ALLEN F. KERNS and JEAN KERNS\nNo. 42\n(Filed 10 April 1974)\n1. Process \u00a7 16\u2014 nonresident motorists \u2014 service through Commissioner of Motor Vehicles \u2014 defective summons\nThe summons in an action against nonresident motorists was patently defective where it was not directed to defendants but to the Commissioner of Motor Vehicles, who was \u201csummoned and notified to appear and answer\u201d the complaint within thirty days after service. G.S. 1-105; G.S. 1A-1, Rule 4(c).\n2. Appearance \u00a7 2; Rules of Civil Procedure \u00a7\u00a7 4, 12\u2014 securing extension of time to plead \u2014 general appearance \u2014 waiver of service of summons\nDefendants made a general appearance, thereby submitting themselves to the court\u2019s jurisdiction and obviating the necessity of any service of summons, when they secured an enlargement of time in which to plead before asserting their defense that the court had obtained no jurisdiction over their persons by answer or pre-answer motion as provided by G.S. 1A-1, Rule 12(b), (g),and (h) (1).\nOn certiorari, granted upon plaintiff\u2019s petition, to review the decision of the Court of Appeals (18 N.C. App. 663, 197 S.E. 2d 595 (1973), affirming the judgment of Bailey, J., 11 December 1972 Session of Durham, docketed and argued in the Supreme Court as Case No. 79 at the Fall Term 1973.\nPlaintiff filed this action on 6 October 1972 to recover damages for personal injuries allegedly sustained in Durham, North Carolina, on 8 October 1969 in a collision between her automobile and an automobile owned by defendants, citizens and residents of Florida, and operated by the male defendant. At the time the complaint was filed \u201cCivil Summons\u201d was issued in words as follows:\n\u201cState op North Carolina County of Durham\nViola H. Philpott\nAgainst\nAllen F. Kerns and Jean Kerns\nState op North Carolina\n\u201cTo each of the defendants named below\u2014\nGreeting:\nDefendant Address\nServe Commissioner of Motor Department of Motor Vehicles Vehicles, Raleigh, North Carolina\n\u201cYou Are Hereby Summoned And Notified to appear and answer to the above entitled civil action as follows: a written answer to the complaint must be served upon the plaintiff\u2019s attorney within Thirty Days after the service of this summons and a copy thereof must be filed at the office of the undersigned clerk. If you fail to do so, the plaintiff will apply to the court for the relief demanded in the complaint.\n\u201cIssued at 11:15 o\u2019clock a.m., this 6 day of October 1972.\nW. W. Perry\nW. W. Perry, Plaintiff\u2019s Sarah W. Garner\nAttorney Deputy Clerk of\nPost Office Box 884, Durham, N. C. Superior Court\u201d\nAddress\u201d\nThe sheriff made the following \u201cReturn of Service\u201d upon the summons:\n\u201cI certify that this summons was received on the 16 day of October 1972, and together with the complaint was served as follows:\n\u201cOn J. W. Garrett, Comm, of Mtr. Yeh (Defendant) on the 16th day of October 1972, by leaving a copy with Becky Watkins at the following place: Dept. Mtr Vehicles Office \u2014 Sec.\nRobert J. Pleasants, Sheriff of Wake County, N. C.\nBy: A. E. Haddock, Deputy Date: 16 October 1972\u201d\nUpon motion of counsel, on 15 November 1972, defendants obtained from the court a twenty-day extension of time in which to answer or otherwise plead. A copy of this order was mailed to plaintiff\u2019s attorney.\nOn 1 December 1972 defendants filed a motion under G.S. 1A-1, Rule 12(b)(2), (4), and (5) to dismiss the action for lack of jurisdiction over the person of defendants because of insufficiency of process and insufficiency of service of process. They also moved under Rule 12 (b) (6) for failure to state a claim upon which relief can be granted. On 12 December 1972 Judge Bailey allowed the motion to dismiss upon the grounds that defendants had not been properly served with summons and the court, therefore, lacked jurisdiction over the person of defendants. Thereafter plaintiff moved to vacate the judgment of dismissal on the grounds that defendants had made a general appearance in the action by procuring an extension of time to plead and that, by virtue of G.S. 1-75.7, the court had jurisdiction of the action even though summons had not been served upon them. Judge Bailey denied the motion to vacate and plaintiff appealed.\nThe Court of Appeals held that the summons was patently defective; that valid service had not been made upon defendants; that defendants had not made \u201ca general appearance to confer jurisdiction\u201d by obtaining an enlargement of time to plead. It affirmed the trial court\u2019s judgment dismissing the action. We allowed plaintiff\u2019s petition for certiorari.\nPearson, Malone, Johnson & DeJarmon by W. G. Pearson II and W. W. Perry for plaintiff appellant.\nHaywood, Denny & Miller by George W. Miller, Jr., for defendant appellees."
  },
  "file_name": "0225-01",
  "first_page_order": 257,
  "last_page_order": 261
}