Smith v. Pacific Intermountain Express Co.

Court of Appeals of North Carolina

Smith v. Pacific Intermountain Express Co.

39 N.C. App. 249, 1978 N.C. App. LEXIS 2370

CourtCourt of Appeals of North Carolina

DecidedDecember 19, 1978

DocketNo. 7728SC85

StatusPublished

This text of 39 N.C. App. 249 (Smith v. Pacific Intermountain Express Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith v. Pacific Intermountain Express Co., 39 N.C. App. 249, 1978 N.C. App. LEXIS 2370 (N.C. Ct. App. 1978).

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Opinion

CLARK, Judge.

In Wiles, supra, the North Carolina Supreme Court held that a summons directed to an officer of a corporation is not defective [251]*251if the caption of the summons and the complaint clearly indicate that the corporation and not the registered agent of the corporation was the intended defendant. See, e.g., Wearring v. Belk Brothers, Inc., 38 N.C. App. 375, 248 S.E. 2d 90 (1978); West v. Reddick, Inc., 38 N.C. App. 370, 248 S.E. 2d 112 (1978); Public Relations, Inc. v. Enterprises, Inc., 36 N.C. App. 673, 245 S.E. 2d 782 (1978).

In the case sub judice, the defendant concedes, and we agree, that the summons addressed to G. A. Sywassink, Vice President in Charge of Operations, PACIFIC INTERMOUNTAIN EXPRESS, INC., 1417 Clay Street, Oakland, California 94600, coupled with the caption in the summons and the complaint sufficiently indicated that the corporation and not the corporate officer was the defendant. Therefore, under the rule set forth in Wiles, the service of process issued to the defendant, Pacific Intermountain Express Company, is valid.

We reaffirm the decision in Smith v. Express Co., 34 N.C. App. 694, 239 S.E. 2d 614 (1977), on the issue of waiver of the defense of lack of jurisdiction.

The trial court’s order as to the issue of improper service of process is

Reversed and remanded.

Judges Mitchell and Webb concur.

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CLARK, Judge.

In Wiles, supra, the North Carolina Supreme Court held that a summons directed to an officer of a corporation is not defective [251]*251if the caption of the summons and the complaint clearly indicate that the corporation and not the registered agent of the corporation was the intended defendant. See, e.g., Wearring v. Belk Brothers, Inc., 38 N.C. App. 375, 248 S.E. 2d 90 (1978); West v. Reddick, Inc., 38 N.C. App. 370, 248 S.E. 2d 112 (1978); Public Relations, Inc. v. Enterprises, Inc., 36 N.C. App. 673, 245 S.E. 2d 782 (1978).

In the case sub judice, the defendant concedes, and we agree, that the summons addressed to G. A. Sywassink, Vice President in Charge of Operations, PACIFIC INTERMOUNTAIN EXPRESS, INC., 1417 Clay Street, Oakland, California 94600, coupled with the caption in the summons and the complaint sufficiently indicated that the corporation and not the corporate officer was the defendant. Therefore, under the rule set forth in Wiles, the service of process issued to the defendant, Pacific Intermountain Express Company, is valid.

We reaffirm the decision in Smith v. Express Co., 34 N.C. App. 694, 239 S.E. 2d 614 (1977), on the issue of waiver of the defense of lack of jurisdiction.

The trial court’s order as to the issue of improper service of process is

Reversed and remanded.

Judges Mitchell and Webb concur.

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39 N.C. App. 249, 1978 N.C. App. LEXIS 2370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-pacific-intermountain-express-co-ncctapp-1978.

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