Coates v. Wilkes
| Decision Date | 28 February 1886 |
| Citation | 94 N.C. 174 |
| Court | North Carolina Supreme Court |
| Parties | COATES BROS. v. JOHN WILKES. |
This was an appeal from an interlocutory order made in a proceeding supplemental to execution, by Montgomery, Judge, at Chambers in CONCORD, on October 17th, 1885.
A former appeal in this case was heard and determined at the February Term, 1885, of this Court. Coates v. Wilkes, 92 N. C., 376.
Afterwards, at the August Term, 1885, of the Superior Court, proceedings were had, and the following is a copy of the material parts thereof:
“This cause coming on for further orders, before his Honor W. J. Montgomery, Judge, at a Superior Court held in Salisbury, for said county, on the 24th of August, 1885, it is now adjudged and decreed by the Court (the plaintiff and defendant being both represented by counsel), that the plaintiffs' motion for the appointment of a receiver herein be allowed, and that E. K. P. Osborne, Esq., be appointed such receiver, and his bond be fixed at ten thousand dollars, to be approved by the Clerk of this Court. It is further adjudged and decreed, that plaintiffs' motion for the production of the books in which are and were kept the accounts of Jane Wilkes, wife of defendant, be allowed and defendant is ordered to produce the same when called for.
Appeal prayed by defendant; notice waived; undertaking fixed at fifty dollars.”
The following notice was filed in the office of the Clerk of the Court, on the 30th day of September, 1885:
“CAPT. JOHN WILKES:--You are hereby notified, that on Saturday, the 17th day of October, 1885, we shall move, before his Honor W. J. Montgomery, Judge, at his Chambers in Concord, North Carolina, for amendment and modification of the decree made at August Term, 1885, of Rowan Superior Court, appointing receiver, &c., in the supplemental proceedings now pending in the Superior Court of Rowan county, wherein we are plaintiffs and you are defendant.”
Service of this notice was accepted September 30th, 1885.
The following amended judgment was rendered by his Honor, at Chambers:
“The above entitled cause coming on for further hearing and orders, pursuant to the opinion and judgment of the Supreme Court upon the appeal heretofore taken, it is now, on motion of plaintiffs' counsel, the defendant's counsel being present, and resisting the same, ordered and adjudged, that a receiver be appointed of the property of the defendant, John Wilkes, wherever situate, and that E. K. P. Osborne, of Charlotte, North Carolina, be and he is hereby appointed a receiver as aforesaid, and that he give bond in the sum of five thousand dollars, payable to the defendant, conditioned for the faithful performance of his duties as such, it appearing to the Court that there are no other supplemental proceedings instituted against the defendant.
It is further ordered that the said defendant shall make no transfer or other disposition of his property, other than his property which may be exempt from execution as homestead and personal property exemption, or any interference therewith.
It further appearing to the Court, from the testimony in the cause, that Jane Wilkes, wife of the defendant, claims the Mecklenburg Iron Works, machinery, tools and implements used in or connected therewith, and also the machinery, engine and fixtures at the Capp's Hill gold mine, said iron works and gold mine being situate in Mecklenburg county, and more fully described in the pleadings and exhibits in this cause; and it further appearing that the said Jane Wilkes claims to own several town lots and buildings in the town of Charlotte, as well as the lot and residence in said town now occupied by her and the defendant, it is therefore further ordered that said Jane Wilkes is hereby forbidden to transfer or to make other disposition of any of said described property, till a sufficient opportunity be given the receiver appointed herein, to commence and prosecute an action or actions to recover the same.
It is further ordered, that said receiver be allowed to bring and prosecute such action or actions in the proper Court or Courts, in the name of the plaintiffs herein, for the recovery of the property of the defendant, real and personal, wherever situate, liable for the payment of plaintiffs' judgment, as he may be advised by his counsel in that behalf.
It is further ordered, that the defendant shall, whenever required in these proceedings, produce for examination the books of the Mecklenburg Iron Works, kept by or under the direction of John Wilkes or other persons for Jane Wilkes, his wife.”
This order was made nunc pro tunc, in lieu of the former order.
The following exceptions to this order, were filed in the office of the Clerk of said Court, on the 27th day of October, 1885, by the defendant:
I. That the Judge had no jurisdiction or power to make so much of the said order as forbids Jane Wilkes to transfer or make other disposition of the property described in the order, and which she claims as her own property.
II. That the order is erroneous, in so far as it requires the defendant John Wilkes to produce for examination the books of the Mecklenburg Iron Works, kept by or under the directions of John Wilkes, or other person, for Jane Wilkes.
III. That it appears from the record, that the judgment upon which these proceedings are based, is, and was at the time of making the order herein referred to, barred by the statute of limitation, more than ten years having elapsed since the rendition and docketing of the judgment at the time this order was moved for and when it was made.
IV. That it appears in this case, that there is real estate upon which the judgment was a lien at the commencement of the supplementary proceedings.
The defendant appealed.
Mr. Theo. F. Kluttz, for the plaintiffs .
Mr. John Devereux, Jr., for the defendant .
MERRIMON, J. (after stating the facts).
In this Court, the counsel for the appellant insisted on the argument, that the Judge at Chambers had no authority to amend the order made in Term, appointing a receiver, &c., because, the appeal taken in Term, at once put the order appealed from, and the proceedings incident to it, in this Court, and beyond the jurisdiction of the Court below. He further insisted that in any case, the Court had not power to amend at Chambers an order made in Term.
It does not appear that at the time the amendment of the order made in Term was...
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