Fidelity & Cas. Co. of New York v. Green

• Decision Date: 01 April 1931
• Docket Number: 282.
• Citation: 157 S.E. 797,200 N.C. 535
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. GREEN et al.
• Court: North Carolina Supreme Court

157 S.E. 797

200 N.C. 535

FIDELITY & CASUALTY CO. OF NEW YORK v. GREEN et al.

No. 282.

Supreme Court of North Carolina

April 1, 1931

Appeal from Superior Court, New Hanover County; Johnson, Special Judge.

Special proceeding by the Fidelity & Casualty Company of New York against T. A. Green and others to determine the ownership of surplus funds paid into the office of the clerk of the superior court, in which proceeding the First National Bank of Spartanburg, S. C., entered a special appearance, and moved to set aside a default judgment against defendant Green, and defendant Green entered a special appearance and moved to quash the services of process upon him. From a judgment of the superior court, affirming the clerk's ruling denying the motions, defendant Green appeals.

Affirmed.

Special proceeding under C. S. § 2593 to determine ownership of surplus funds paid into office of clerk of superior court by trustee in foreclosure of deed of trust on real estate situate in New Hanover county.

Several years ago, T. A. Green, a nonresident of the state, was the owner of a hotel in the city of Wilmington, which was incumbered by mortgage or deed of trust and other liens. Foreclosure was had under the first deed of trust, and a surplus of $3,035.39 paid into office of clerk of superior court by the trustee for distribution according to law. C. S § 2592. The plaintiff claims a lien on the surplus funds in the hands of the clerk, while the corporate and partnership defendants are unsecured creditors of the said T. A. Green.

The petition was filed herein and summons issued January 31 1930, which was duly served on all the defendants except T A. Green who was not to be found in New Hanover county. In apt time, verified answers were filed by the corporate and partnership defendants, and in the answer of the North-Smith Coal Company, filed February 10, 1930, it was set forth that the said T. A. Green was not a resident of this state, but was a resident either of the state of Florida or of the state of South Carolina.

On February 19, 1930, alias summons (though bearing date of the original) was issued by the clerk of the superior court of New Hanover county accompanied by copy of the petition, to the sheriff of Spartanburg county, S. C., which was personally served on the defendant T. A. Green, March 11, 1930, and return made in form as provided by C. S. § 491. No order for service of summons and petition by publication or personally in another state was entered by the clerk prior to sending papers to the sheriff of Spartanburg county, S. C., nor was there any affidavit, other than answer of North-Smith Coal Company, before the clerk, setting out the defendant's place of residence.

Judgment by default was taken against the defendant T. A. Green, for want of an answer June 30, 1930, as appears by the record.

Thereafter, on July 12, 1930, the First National Bank of Spartanburg, S. C., entered a special appearance and moved to set aside the default judgment, entered against the defendant T. A. Green, alleging that on April 23, 1930, the said T. A. Green, for a recited sum of "One dollar and other valuable consideration," executed to the said bank an assignment of all his right, title, and interest in and to the funds involved in this proceeding. This assignment was, on May 8, 1930, registered in the office of the register of deeds of New Hanover county, and in it the said T. A. Green recites and declares himself to be a resident of the state of Florida.

On July 16, 1930, the defendant T. A. Green entered a special appearance and moved to "quash the service of process in this case because not authorized by the laws of North Carolina."

The motions of T. A. Green and the First National Bank of Spartanburg were denied by the clerk, and this ruling was affirmed by the judge of the superior court.

The defendant T. A. Green appeals, assigning error.

Herbert McClammy and Rountree & Rountree, all of Wilmington, for appellant.

Ruark & Ruark, of Raleigh, for appellee.

I. C. Wright, of Wilmington, for North-Smith Coal Co.

STACY, C.J. (after stating the case).

The record contains no statement of case on appeal, hence we are limited to a consideration of the judgment, the appeal itself being an exception thereto. Parker Co. v. Bank, 200 N.C. 441, 157 S.E. 419.

The appellant rests his case upon the ground that the requirements of the statute, C. S. § 491, providing for personal service on...