Grace v. Johnson

204 S.E.2d 723, 21 N.C. App. 432, 1974 N.C. App. LEXIS 1826

Opinion

VAUGHN, Judge.

Rule 4(i) of the Rules of Civil Procedure empowers the court to allow amendment of the summons at any time in its discretion unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued. A comment by the General Statutes Commission states that the rule “in terms, does not provide for any greater liberality of amendment than did former G.S. 1-163.” We agree. The question, therefore, is whether an amendment to the summons to correct the name of the court in which the action was commenced would have been allowable under former G.S. 1-163. This question was answered in Brantley v. Sawyer, 5 N.C. App. 557, 169 S.E. 2d 55. In that case the trial court allowed plaintiff to amend the name of the court in which the action was pending. On appeal, this court held that the amendment should not have been allowed because of the fatal variance between the place where defendant was commanded to appear and the place where the suit was pending. In the case before us now, the action was pending in Chatham County. The original and copy of the summons directed defendant to appear and answer in Durham County. Defendant’s motion under Rule 12(b) (4) should have been allowed.

Reversed.

Judges Britt and Parker concur.