Bizzell v. Mitchell

• Decision Date: 18 April 1928
• Docket Number: 100.
• Parties: BIZZELL et al. v. MITCHELL.
• Court: North Carolina Supreme Court

142 S.E. 706

195 N.C. 484

BIZZELL et al. v. MITCHELL.

No. 100.

Supreme Court of North Carolina

April 18, 1928

Appeal from Superior Court, Wayne County; Grady, Judge.

Action by George D. Bizzell and another, trading as the Bizzell Grocery Company, against N.C. Mitchell, in which a warrant of attachment was issued. From a judgment vacating the warrant and discharging the surety on defendant's replevy bond plaintiffs appeal. No error.

Court has jurisdiction of nonresident's property, attached or brought under court's control by appropriate process, and judgment extends only to value thereof.

This action is brought by plaintiffs against defendant, N.C Mitchell, to recover a debt for supplies and advances. The action was commenced in Wayne county on September 14, 1925 and the summons issued to Greene county, returnable on September 25, 1925. It was served on defendant September 19, 1925. A warrant of attachment was sued out. The affidavit on which it was based alleges the indebtedness and recites:

"That the said N.C. Mitchell keeps himself concealed therein with intent to avoid the service of summons (or) that the said N.C. Mitchell is about to assign, dispose of (or) some of his property with intent to defraud his creditors."

The warrant of attachment recites:

"That the above named (N. C. Mitchell) had disposed of, and is about to dispose of, some of his property, with intent to defraud his creditors. *** You are forthwith commanded to attach and safely keep all the property of the said N.C. Mitchell in your county or so much thereof as may be sufficient to satisfy said demand, with costs and expenses, and you will make due return thereof to the said court at the term to be held on the 3th day of September, 1925."

The warrant was issued to Greene county, and the property is set forth in the undertaking below.

The defendant's undertaking in attachment is as follows:

"Whereas, by virtue of a writ of attachment issued in the above-entitled case on the 14th day of September, 1925, the sheriff of Greene county did seize and levy on the following described personal property belonging to defendant, to wit: Defendant's interest in 35 bales cotton; 15,000 pounds of tobacco, 120 barrels corn, one Ford automobile, eight mules, four cows, one lot farming implements.

Now, therefore, we, N.C. Mitchell and H. L. Bizzell, undertake in the sum of $10,000 that the said defendant will return the said property to the said officer, if such said officer shall deliver it to him, providing said plaintiffs recover judgment in said action, and pay all costs awarded against him; or in default thereof will pay to said plaintiffs the value of said property and all costs and damages that may be awarded against him in said action. Witness our hands and seals, this 21st day September, 1925. N.C. Mitchell. H. L. Bizzell."

The judgment of the court below is as follows:

"Present and presiding, Henry A. Grady, Judge.

This cause coming on to be heard before the Court and jury, and the jury having returned the following verdict, to wit:

(1) In what amount, if anything, is the defendant indebted to the plaintiffs? Answer: $2,582.48, with interest from January 1, 1925.

(2) What was the value of the property levied upon by the sheriff under warrant of attachment? Answer: $3,000 (by consent).

(3) At the time of the warrant of attachment was issued, had the defendant kept himself concealed with intent to avoid service of summons? Answer: No.

(4) At the time the warrant of attachment was issued, had the defendant assigned, disposed of, or was he about to assign or dispose of, his property with intent to defraud his creditors? Answer: No.

And it appearing to the court that a warrant of attachment was issued in this cause on or about September 14, 1925, and that the summons and warrant of attachment were served on the defendant on September 19, 1925, and that a bond was filed by the defendant under sections 813, 815, of Consolidated Statutes, with Herbert L. Bizzell as surety thereon, said bond being in the penal sum of $10,000, and it further appearing to the court that no motion was made prior to the trial for the vacating or setting aside of said warrant of attachment; and the defendant having moved pending the trial and before verdict that said warrant be vacated, and having filed affidavits in support of said motion, and no affidavits or evidence having been filed or offered by the plaintiffs in denial of the facts set up in said affidavits, the court finds as a fact that, at the time of the issuance of said warrant, the defendant was not keeping himself concealed for the purpose of avoiding the service of process, but that the summons was served upon him, and the court finds as a fact that the defendant had not disposed of any of his property, nor was he attempting to dispose of same for the purpose of defrauding his creditors, and that the allegations of the affidavit upon which said warrant was issued were untrue in fact, now upon the findings of the fact above set out, and upon the verdict, it is ordered and adjudged that said warrant of attachment be, and the same is, vacated and set aside, and the surety on the replevin bond, Herbert L. Bizzell, is discharged from all liability thereon. It is further ordered and adjudged that the plaintiff recover of the defendant, N.C. Mitchell, the sum of $2,582.48, with interest on the same from January 1, 1925, and the costs of this action to be taxed by the clerk."

J. Faison Thompon, of Goldsboro, for appellants.

Kenneth C. Royall, of Goldsboro, for appellee.

CLARKSON J.

The sole question presented on this appeal is H. L. Bizzell, the surety on the undertaking, released. No motion to vacate the attachment having been made before a replevy bond was given, but the jury and the judge each having found as a fact at the trial that no grounds of attachment did exist, was the court in error in vacating the attachment and discharging the surety on the attachment bond? We think not. We decide it here on the theory it was tried in the court below.

We must note in the beginning that this is an attachment proceeding-a provisional or ancillary remedy. We are governed by the statutes on the subject. In approaching the main subject, we outline some of the decisions and the statutes applicable in attachments.

It is well settled in this jurisdiction that the findings of fact by the court below in matters of this kind are binding on this court, if there is competent evidence to support them. Kenney v. Hotel Co., 194 N.C. 44, 138 S.E. 349; Brann v. Hanes, 194 N.C. 571, 140 S.E. 292. "It is a provisional remedy, and as such does not affect the decision of the case upon its merits." Mohn v. Cressey, 193 N.C. at p. 571, 137 S.E. 720.

In an action before a justice of the peace, where the jurisdiction is conferred for the debt:

"Want of authority in the justice to issue original process to any county other than his own did not inhibit the running of the warrant of attachment to another county, or the service of a notice upon the garnishee to appear before the court to which the attachment was returnable to answer upon oath as the statute provides; for issuing the warrant was only incidental to the original action." Mohn Case, supra.

C. S. § 814, is as follows:

"When the defendant has appeared in such action, he may apply to the court in which it is pending, or to the judge thereof, for an order to discharge the attachment; and if the order is granted, all the proceeds of sale, and moneys collected in the action, and all property attached remaining in the hands of any officer of the court, under any process or order in the action shall be delivered or paid to the defendant or his agent, and released from the attachment. Where there is more than one defendant, and the several property of one of them has been seized by virtue of the order of attachment, the defendant whose several property was seized may apply in like manner for relief."

C. S. § 815, in part, is as follows:

"Upon the application provided for in the preceding section the defendant must deliver to the court an undertaking in at least double the amount claimed by the plaintiff in his complaint, executed by two sureties residing in this state, approved by the court, to the effect that the surety will, on demand, pay to the plaintiff the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking," etc.

See, also, C. S. § 813.

If the undertaking is not given, provision is made as follows (C. S. § 827):

"The defendant, or person who has acquired a lien upon, or interest in, his property before or after it was attached, may at any time before the actual application of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to the court having jurisdiction to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief, together or in the alternative, as in cases of other provisional remedies." Byrd v. Nivens, 189 N.C. 621, 127 S.E. 673.

Under C. S. § 802, "the warrant of attachment may be granted to accompany the summons, or at any time thereafter."

The purpose of an attachment is to conserve the property for eventual execution after the action shall have proceeded to judgment. Mfg. Co. v. Lumber Co., 177 N.C. 404, 99 S.E. 104; Hambley v. White, 192 N.C. 31, 133 S.E. 399; Saliba v. Mother Agnes, 193 N.C. 251, 136 S.E. 706. The debtor may procure its release by giving undertaking in the manner provided by the statute, supra.

A personal judgment rendered against a nonresident is a nullity, unless he has been served with process or...