First Nat. Bank v. Asheville Furniture & Lumber Co.

• Decision Date: 30 March 1897
• Citation: 26 S.E. 927,120 N.C. 475
• Parties: FIRST NAT. BANK OF SPRINGFIELD et al. v. ASHEVILLE FURNITURE & LUMBER CO.
• Court: North Carolina Supreme Court

26 S.E. 927

120 N.C. 475

FIRST NAT. BANK OF SPRINGFIELD et al. v. ASHEVILLE FURNITURE & LUMBER CO.

Supreme Court of North Carolina

March 30, 1897

Appeal from superior court, Buncombe county; Robinson, Judge.

Actions by the First National Bank of Springfield, Ohio, and the Mad River National Bank against the Asheville Furniture & Lumber Company were consolidated. Property of defendant was attached by plaintiff in each action, and the National Bank of Asheville and others intervened as claimants. From a judgment for plaintiffs, interveners appeal. Affirmed.

Where the parties to an intervention in attachment agreed that, if the jury found for plaintiff, the damages should be interest at a certain per cent. on the value of the property, which was found by the jury, the court itself might properly compute interest on such value at the agreed rate, and enter the result as the answer to the issue of damages.

W. W Jones, Jas. H. Merrimon, C. M. Stedman, and Shepherd & Busbee, for appellants.

F. A Sondley and Moore & Moore, for appellee.

FURCHES J.

This case was before us at February term, 1895, on the appeal of the plaintiffs, at which time a new trial was awarded. 116 N.C. 827, 21 S.E. 948. A new trial has been had, and the case is again before us, on appeal of the interveners. Upon an examination of the record in this appeal and the record of the former appeal, we find that the case presented by this appeal is substantially the same as that before us on the former appeal. The points of difference will be noted. But so far as it is the same, the former opinion must stand. If it was not correct, the proper course to have it reviewed was by petition to rehear. The greater part of the brief and the authorities cited are to show that the former opinion is erroneous. But, for the reasons we have stated, these arguments and authorities cannot avail the interpleading appellants.

In the former appeal the interpleading appellants, for the purpose of showing the agency and authority of Avery to sell, and thereby to show their title to the attached property, introduced evidence tending to show a meeting of the directors of the defendant company in Cincinnati, Ohio. On the last trial they did not introduce this evidence. And this is alleged by the interveners as a difference between this case and the former case on appeal. The appellants are correct in claiming that the cases differ in this respect. But we are unable to see how this helps them. How it is that because they did not introduce all the evidence relied upon to show their title on the last trial which they did on the first can benefit them, we cannot see. This exception can avail the interpleaders nothing, and this is the only substantial difference in the evidence in this and the former trial. There are many other exceptions,--as to the Glen Rock Hotel meeting, the sale to the Tennessee Company, as to what took place between Avery and the interveners at the time of the sale to the interveners, and as to other matters; but these were all passed upon on the first trial, and by the former opinion of this court.

There are three exceptions not passed on by the former trial, and by the former opinion of this court. One of these is that...