This Court has held that "the absence of the clerk's signature on the summons [is] a defect of a formal character which [is] waived by a general appearance." Hooker v. Forbes, 202 N.C. 364, 368, 162 S.E. 903, 905 (1932). We have recently reiterated this position, holding that summons-related deficiencies similar to those at issue here "implicate personal jurisdiction and thus can be waived by the parties."
Therefore, this Court has consistently held that an officer's return or a judgment based thereon may not be set aside unless the evidence consists of more than a single contradictory affidavit (the contradictory testimony of one witness) and is clear and unequivocal. Dunn v. Wilson, supra; Penley v. Rader, 208 N.C. 702, 182 S.E. 337; Hooker v. Forbes, 202 N.C. 364, 162 S.E. 903; Jordan v. McKenzie, 199 N.C. 750, 155 S.E. 868; Glass v. Moore, 195 N.C. 871, 142 S.E. 585; Trust Co. v. Nowell, supra; Commissioners v. Spencer, 174 N.C. 36, 93 S.E. 435; Caviness v. Hunt, supra. There are two assignments of error.
Gooch v. Gregory, 65 N.C. 142. In Hooker v. Forbes, 202 N.C. 364, p. 368, 162 S.E. 903, it is said: "It had previously been decided that a writ signed by an attorney under a verbal deputation of the clerk to all members of the bar was a nullity. Shepherd v. Lane, 13 N.C. 148; Gardner v. Lane, 14 N.C. 53"
In our Reports numerous decisions may be found dealing with the jurisdictional effect of the absence from summons of the Clerk's signature or name. However, decision here is controlled by the principles explained in these cases: Henderson v. Graham, 84 N.C. 496; Redmond v. Mullenax, 113 N.C. 505, 18 S.E. 708; Hooker v. Forbes, 202 N.C. 364, 162 S.E. 903; Land Bank v. Aycock, 223 N.C. 837, 28 S.E.2d 494; Williams v. Trammell, 230 N.C. 575, 55 S.E.2d 81; Boone v. Sparrow, 235 N.C. 396, 70 S.E.2d 204. The rule deducible from these decisions, as applicable to the instant case, may be summarized as follows: To confer jurisdiction, the process relied on must in fact issue from the court and show upon its face that it emanated therefrom and was intended to bring the defendant into court to answer the complaint of the plaintiff.
Is his failure to do so a fatal defect which renders the service thereof ineffectual and a judgment entered in the cause void and of no effect? On this question we have two distinct lines of decisions. In Hooker v. Forbes, 202 N.C. 364, 162 S.E. 903, we held that the failure of the clerk to comply with the requirement that a summons must be signed by him, G.S. 1-89, is a defect which may be waived by a general appearance and may therefore be remedied by amendment under G.S. 1-163. Henderson v. Graham, 84 N.C. 496; Piercy v. Watson, 118 N.C. 976, and Land Bank v. Aycock, 223 N.C. 837, 28 S.E.2d 494, are to like effect. On the other hand, in Redmond v. Mullenax, 113 N.C. 505, this Court held that the failure of the clerk to sign the summons in that case was fatal and the judgment entered in the case was void.
The appellants are relying upon mere irregularities or technicalities, which in nowise misled them. Moreover, in the case of Hooker v. Forbes, 202 N.C. 364, 162 S.E. 903, where the Clerk of the Superior Court failed to sign the original summons and judgment by default final had been taken, the trial judge permitted a correction by amendment nunc pro tunc and declined to set aside the judgment, and this Court affirmed the decision. The appellants contend, however, the judgment herein is void and rely upon Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311, and Harrell v. Welstead, 206 N.C. 817, 173 S.E. 283.
The applicable statute and the decisions of this Court answer "Yes." G.S., 1-163, formerly C. S., 547, and Henderson v. Graham, 84 N.C. 496; Jackson v. McLean, 90 N.C. 64; Hooker v. Forbes, 202 N.C. 364, 162 S.E. 903. Compare Redmond v. Mullenax, 113 N.C. 505, 18 S.E. 708. While plaintiff alleges in the complaint that the judgment sued on is not barred by the statute of limitations, there is yet no plea of such statute, and the question is not now before the Court.