Short Answer

Yes. In a North Carolina partition special proceeding, you can re-serve by asking the Clerk of Superior Court to issue an alias and pluries summons or a new summons and then serving it again. A summons must be served within 60 days of issuance, and you can keep it alive by timely alias/pluries issuance or endorsement within 90 days of the last issuance. If the clerk never issued or docketed the original summons, the prior service likely does not count, so obtain a properly issued summons and re-serve.

Understanding the Problem

You filed a partition petition in North Carolina. The sheriff served the summons, but nothing appears in the court’s online portal, and you are checking with the Clerk of Superior Court. Your question is whether you can re-serve the partition summons when the clerk’s records do not show it.

Apply the Law

Partition is a special proceeding before the Clerk of Superior Court. The clerk issues a Special Proceedings Summons, and service must follow North Carolina Rule 4. If service is not completed within 60 days of issuance, you must obtain an endorsement or an alias and pluries summons within 90 days of the last issuance to keep the case alive. Respondents generally have 10 days to answer after service in special proceedings. If the clerk never issued the summons, any attempted service is defective and you should obtain a properly issued summons and serve again.

Key Requirements

• Valid issuance: The Clerk of Superior Court must issue a Special Proceedings Summons for the partition case.
• Timely service: Serve the summons and petition within 60 days of issuance by a Rule 4 method (e.g., sheriff, certified mail, designated delivery service).
• Keep summons alive: If not yet served, obtain an endorsement or alias and pluries summons within 90 days of the last issuance/endorsement.
• Proof of service: File the sheriff’s return or an affidavit of service so the clerk can confirm service before scheduling hearings.
• Answer period: In special proceedings, respondents typically have 10 days after service to answer.

What the Statutes Say

• G.S. 1-394 (Special proceedings; issuance; answer time) – Clerk issues summons in special proceedings; 10-day answer period.
• G.S. 1-393 (Rules apply to special proceedings) – Civil Rules apply unless a statute provides otherwise.
• G.S. 1A-1, Rule 4 (Summons; service; alias and pluries) – Methods of service; 60-day service window; 90-day endorsement or alias/pluries to extend.

Analysis

Apply the Rule to the Facts: Because the portal shows no entry, first confirm with the Clerk of Superior Court whether a Special Proceedings Summons was issued and filed. If it was issued and the sheriff served within 60 days, file the sheriff’s return to complete the record. If the summons was issued but not served and you are within 90 days of the last issuance, ask the clerk to issue an alias and pluries summons and re-serve. If the clerk never issued the summons, obtain a properly issued Special Proceedings Summons and serve again under Rule 4.

Process & Timing

1. Who files: Petitioner in the partition case. Where: Clerk of Superior Court in the county where the land is located. What: Petition for Partition and AOC-SP-100 Special Proceedings Summons. When: Serve the summons within 60 days of issuance; if needed, obtain an endorsement or alias and pluries within 90 days to keep service alive.
2. Ask the clerk to confirm issuance/docketing and to issue an alias and pluries summons if service is incomplete or the record is unclear. Sheriff or other Rule 4 service typically returns proof within a few weeks, but timelines vary by county.
3. File the return/affidavit of service. After the 10-day answer period runs, request the clerk to calendar the next step in the partition proceeding.

Exceptions & Pitfalls

• Online portal gaps: The portal is not the official file. Always verify issuance and returns with the Clerk of Superior Court.
• No issued summons: Service made without a clerk-issued Special Proceedings Summons is defective; obtain a properly issued summons and re-serve.
• Lapsed service window: If more than 90 days pass after the last issuance/endorsement without alias/pluries, you will need a new summons and fresh service to regain jurisdiction.
• Wrong form: Use the Special Proceedings Summons (AOC-SP-100) for partition, not an estate or civil action summons.
• Service on protected parties: For minors or adults under guardianship, follow Rule 4’s specific service rules to avoid later challenges.

Talk to a Partition Action Attorney

If you’re dealing with missing summons records or lapsed service in a North Carolina partition case, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.