Bethell v. Lee

• Decision Date: 13 May 1931
• Docket Number: 373.
• Citation: 158 S.E. 493,200 N.C. 755
• Parties: BETHELL v. LEE.
• Court: North Carolina Supreme Court

158 S.E. 493

200 N.C. 755

BETHELL v. LEE.

No. 373.

Supreme Court of North Carolina

May 13, 1931

Appeal from Superior Court, Rockingham County; Finley, Judge.

Suit by W. D. Bethell against B. F. Lee. From the judgment, defendant appeals.

Reversed.

The evidence tended to show that on June 4, 1921, B. F. Lee instituted a civil action against George W. Bethell. On June 6, 1921, the sheriff returned the summons with the following entry: "Not to be found in Rockingham County." On the same day the plaintiff filed a complaint alleging "that the defendant is a resident of the State of Virginia, residing in the city of Norfolk," and further "that the defendant, George W. Bethell, is indebted to the plaintiff in the sum of $4,218.50 and interest thereon from July 1, 1920; that no part of said debt has been paid to satisfy the entire amount, but the entire amount is still due and owing to the plaintiff by the defendant; that there are no offsets or counterclaims in favor of defendant and against the plaintiff on account of said debt." On the same day the plaintiff, Lee, made an affidavit as follows: "That he is about to commence an action against the above named defendant for the purpose of recovering $4,218.50 with interest from July 1, 1920; that the said defendant is a nonresident of the State of North Carolina and is beyond the reach of process issuing from the courts of said State." On the same day the plaintiff, Lee, filed another affidavit as follows: "That George W. Bethell, the defendant, is justly indebted to B. F. Lee, the plaintiff in the sum of $4,218.50 with interest from July 1, 1920, as nearly as he can ascertain same over and above all discounts, set-offs and counterclaims which the said defendant has against him, which said debt arose from breach of contract on the part of the defendant, whereby the said defendant failed and refused to pay the plaintiff and his assignor the said sum of $4,218.50 with interest from July 1, 1920, which said sum of money was due this plaintiff and his assignor for money paid by the plaintiff and his assignor to the use of defendant; that the said George W. Bethell is a nonresident of the State of North Carolina and has been for several years; that the said George W. Bethell is the owner of certain real estate situated in the State of North Carolina, the value of which being sufficient to satisfy the claim of this plaintiff. Wherefore this plaintiff prays the court for a warrant of attachment authorizing the seizure under said attachment of any and all property owned by the said George W. Bethell to the end that the claims of this plaintiff may be satisfied."

Thereupon on June 6, 1921, the clerk of the superior court made the following order:

"It appearing to the court from the affidavit of the plaintiff filed in the above entitled cause that the defendant George W. Bethell, is a nonresident of the State of North Carolina, and is beyond the reach of process issuing from the courts of this State, and it further appearing from said affidavit that the said B. F. Lee has a good cause of action against the said Geo. W. Bethell;

"It is, therefore, ordered that notice of this action be published once a week for four weeks in Madison Messenger, a newspaper published in Rockingham County, setting forth the title of the action and stating the names of the parties and amount of the claim, the issuing of the attachment and a brief recital of the subject matter and nature of the suit, and requiring the defendant to appear before the Clerk of the Superior Court of Rockingham County, at his office in Wentworth, on the 12th day of July, 1921, and answer or demur to the complaint of the said plaintiff."

It appears that a proper notice of summons and warrant of attachment was duly published as required by law.

Thereafter on January 7, 1924, the clerk of the superior court entered the following judgment: "This cause coming on to be heard before the undersigned, and it appearing that the defendant has been properly served with notice of this action by publication as provided for by law, and it further appearing that the plaintiff has filed a duly verified complaint, and that from said complaint it appears that the defendant is indebted to the plaintiff in the sum of four thousand two hundred eighteen and 50/100 dollars, with interest from the 1st day of June, 1921, a warrant of attachment was issued against the property of the defendant, and that pursuant to said warrant of attachment on the following described tract of land: Lying and being in Ruffin Township, Rockingham County, State of North Carolina, and containing 356 acres, and adjoining the lands of J. M. Walsh, the Alverson Place, and the lands of Charlie Yates, and being known as the Chandler Mill Tract. The part of the said land of which was levied on being all the right, title and interest of George W. Bethell. It is, therefore, ordered, considered and adjudged that the plaintiff recover of the defendant the sum of Four Thousand Two Hundred Eighteen and 50/100 Dollars, and interest from the 1st day of July, 1930, and the costs of this action. And it is further ordered, considered and adjudged that this...