Brann v. Hanes

• Decision Date: 23 November 1927
• Docket Number: 346.
• Citation: 140 S.E. 292,194 N.C. 571
• Parties: BRANN v. HANES et al.
• Court: North Carolina Supreme Court

140 S.E. 292

194 N.C. 571

BRANN v. HANES et al.

No. 346.

Supreme Court of North Carolina

November 23, 1927

Appeal from Superior Court, Forsyth County; Harding, Judge.

Action by T. R. Brann against W. M. Hanes and others. Findings of fact were made by the clerk of the court, and an order was entered denying a motion of defendant named, who thereupon appealed to the judge of the superior court, where the order was affirmed, and named defendant appeals. Affirmed.

Action to recover of defendants, officers and directors of an insolvent bank, a sum of money on deposit in said bank, to the credit of plaintiff at the date of the appointment of a receiver therefor.

In his complaint, plaintiff alleges that said deposit was received when the bank, to the knowledge of defendants, was insolvent and, further, that its insolvency, resulting in loss to him as a depositor, was caused by negligence of defendants, as officers and directors of said bank. Upon these allegations he contends that defendants are personally liable to him for his loss.

The summons in the action was personally served on all the defendants, except W. M. Hanes. As to him, the summons was returned with the following indorsement by the sheriff of Forsyth county:

"Not executed as to W. M. Hanes, after due diligence; W. M Hanes cannot be found in Forsyth county."

Warrant of attachment and order for service of summons by publication on defendant W. M. Hanes were issued by the clerk of the superior court of Forsyth county. The said clerk found from affidavits duly filed that W. M. Hanes is a nonresident of the state of North Carolina; that he has property in said state; and that plaintiff has a cause of action against said W. M. Hanes, as set out in his duly verified complaint. Said warrant and order are both dated January 25, 1927, and were returnable before said clerk on February 28, 1927.

On January 31, 1927, attorneys for said defendant entered a special appearance in this action in his behalf, and moved before the clerk that the attachment levied upon his property in Forsyth county, pursuant to said warrant, be vacated, for that said W. M. Hanes is not, and never has been, a nonresident of the state of North Carolina. It was alleged that he is now, and at all times during his life has been, a resident of said state.

At the hearing of said motion, upon findings of fact made by the clerk from affidavits filed by both defendant and plaintiff an order was entered, denying the motion. From this order defendant appealed to the judge of the superior court holding the courts of Forsyth county. The said judge sustained the findings of fact made by the clerk, and affirmed his order.

From the order of the judge affirming the order of the clerk and denying the motion to vacate the attachment, defendant appealed to the Supreme Court.

Swink, Clements & Hutchins, of Winston-Salem, and Brooks, Parker, Smith & Wharton and Edwin J. Martinet, all of Greensboro, for appellant.

Manly, Hendren & Womble and Fred M. Parrish, all of Winston-Salem, for appellee.

CONNOR J.

The sole question presented for decision by this appeal is whether there was error in holding that W. M. Hanes was a nonresident of the state of North Carolina, at the date on which the warrant of attachment and order for service of summons by publication were issued in this action within the meaning of C. S. § 484, subsec. 3, and of C. S. § 799, subsec. 2. The court so held upon the facts found from the evidence offered at the hearing of the motion to vacate the attachment solely upon the ground that said W. M. Hanes was not a nonresident of the state, at said date. The findings of fact made by the clerk and sustained by the judge are supported by the evidence. We must therefore, on the appeal to this court, take such facts as true, for it is well settled that, on an appeal to this court, from an order made by the judge sustaining findings of fact made by a clerk of the superior court, on a motion made before the clerk to vacate an attachment, the findings of fact made by the clerk and sustained by the judge are not reviewable. They are conclusive upon an appeal to this court, where they are taken as true, when there is evidence in support of the findings. Hennis v. Hennis, 180 N.C. 606, 105 S.E. 274; Morganton Mfg. Co. v. Foy-Seawell Lumber Co., 177 N.C. 404, 99 S.E. 104; Coharie Lumber Co. v. Buhmann, 160 N.C. 385, 75 S.E. 1008.

It appears from the findings of fact made by the clerk, and approved by the judge, all of which are set out in the order from which defendant has appealed to this court, that prior to January 1, 1926, W. M. Hanes was a resident of Winston-Salem, N. C., where he had been actively engaged in business for many years; that in October, 1925, he became desperately ill, suffering a relapse from tuberculosis, from which disease he had suffered, intermittently, since 1913; that, while thus desperately ill, on or about January 1, 1926, he was taken from his home in Winston-Salem, N. C., to Saranac Lake, in the state of New York, where he has maintained for many years a winter home, which he and his family had, during previous years, occupied from time to time.

Prior to January 1, 1926, while at his winter home at Saranac Lake, the said W. M. Hanes always intended to return to his home in Winston-Salem, after remaining at Saranac Lake for a definite time, and in accordance with such intentions he has heretofore so returned. Since January 1, 1926, he has resided continuously at Saranac Lake, not having returned to North Carolina at any time. Since said date he has been, and is now, very ill, under the constant care of physicians and nurses. His return to Winston-Salem is altogether contingent upon his recovery, and, while he intends to return to North Carolina upon the recovery of his health, the duration of his residence in the state of New York and of his absence from the state of North Carolina is uncertain and indefinite, because of the nature of his illness. His physicians, while hopeful of his recovery, are unable to state with any degree of assurance that he will recover his health to such an extent, at least, that he will be able to leave New York and to return to North Carolina, nor are they able to predict, if he shall recover, when he will be able to do so. The said W. M. Hanes has property interests in Winston-Salem, N. C., of large value. He also owns property of considerable value at Saranac Lake, N.Y. He is a very wealthy man, and for many years has been a director of the bank which has become insolvent, because, as alleged by plaintiff, of the negligence of its officers and directors, with the result that plaintiff and other depositors have sustained heavy losses.

Upon the foregoing facts there is no error in the holding that W M. Hanes is a nonresident of the state of North Carolina, within the meaning of C. S. § 484, subsec. 3, and of C. S. § 799, subsec. 2, and the order denying the motion of defendant to vacate the attachment upon his property pursuant to the warrant issued in this action, upon...