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Latham v. Cherry9/7/1993
The issue posed by this case is whether a voluntary dismissal without prejudice tolls the statute of limitations in a case in which the plaintiff, seeing the statute of limitations about to run, receives an order extending the time for filing a complaint but fails to serve defendant with civil summons and the order, files her complaint within the time allowed by the order, and properly serves defendant with the complaint and a "Delayed Service of Complaint."
The facts of the case are as follows. On 1 June 1990, plaintiff applied to the Clerk of Superior Court, Pitt County, for an order extending time to file a complaint seeking damages allegedly resulting from defendant's negligence. On that same day an assistant clerk signed an order extending the time for filing the complaint until 21 June 1990. Plaintiff was required to serve defendant with a copy of the order extending time to file her complaint and civil summons. However, plaintiff's "Civil Summons to be Served with Order Extending Time to File Complaint," issued on 1 June 1990, was returned unserved on 19 June 1990. On 21 June 1990, plaintiff timely filed her complaint, seeking from defendant damages resulting from an automobile accident that occurred on or about 2 June 1987. She served defendant with the complaint, along with a document entitled "Delayed Service of Complaint," on 27 June 1990. On 20 November 1990, plaintiff voluntarily dismissed the action without prejudice.
On or about 19 November 1991, plaintiff refiled her complaint, this time in Martin County. She served defendant with a summons and a copy of the complaint on 26 November 1991. On 10 December 1991, defendant filed a motion to dismiss based upon the statute of limitations contained in N.C. Gen. Stat. § 1-52(16) (1983). On 12 June 1992, the trial court allowed defendant's motion to dismiss. Plaintiff subsequently filed a "Motion for New Trial or to Grant Relief on Judgment." On 19 November 1992, the trial court denied plaintiff's motion.
By her appeal, plaintiff challenges both the dismissal and the denial of her motion for relief. Specifically, she contends that her
complaint, filed 19 November 1991, was timely because she filed it less than a year after voluntarily dismissing her first action without prejudice. The crux of the problem in this case, however, lies with the effect of plaintiff's failure to serve defendant with civil summons when she obtained an extension of time in which to file her complaint.
The statute of limitations for personal injury due to negligence is three years. N.C.G.S. § 1-52(16). Under N.C. Gen. Stat. § 1A-1, Rule 3(a) (1990), a plaintiff may commence an action by filing a complaint or by obtaining an extension of time. Rule 3(a) also requires that the summons and the court order extending time be filed in accordance with the provisions of N.C. Gen. Stat. § 1A-1, Rule 4 (1990). This Court has addressed the necessity of a summons:
The summons constitutes the means of obtaining jurisdiction over the defendant. . . . The summons, not the complaint, constitutes the exercise of the power of the State to bring the defendant before the court. As such, defects in the summons receive careful scrutiny and can prove fatal to the action.
Childress v. Forsyth County Hospital Auth., 70 N.C. App. 281, 285, 319 S.E.2d 329, 332 (1984), disc. review denied, 312 N.C. 796, 325 S.E.2d 484 (1985) (citations omitted).
A party may correct a failed or defective original service by endorsement of the original
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