Hagedorn v. Hagedorn

• Decision Date: 20 May 1936
• Docket Number: 678.
• Citation: Hagedorn v. Hagedorn, 210 N.C. 164, 185 S.E. 768 (N.C. 1936)
• Parties: HAGEDORN v. HAGEDORN
• Court: North Carolina Supreme Court

185 S.E. 768

210 N.C. 164

HAGEDORN v. HAGEDORN

No. 678.

Supreme Court of North Carolina

May 20, 1936

Action by Frances W. Hagedorn against Heyman Hagedorn and the Forsyth Equipment Company. From an adverse order, the Forsyth Equipment Company appeals assigning errors.

Error.

Civil action pending in the superior court of Guilford county.

In September, 1935, plaintiff brought suit in the superior court of Guilford county against her husband, Heyman Hagedorn, for maintenance and support under C.S.Supp.1924, § 1667, and obtained an order requiring her said husband to provide $300 per month, and counsel fees, which order has not been obeyed.

The present action was instituted to reach assets belonging to the said Heyman Hagedorn, it being alleged that a certain bank account and other properties belonging to Heyman Hagedorn have been transferred to the Forsyth Equipment Company, a North Carolina corporation of which Heyman Hagedorn is president and treasurer, with intent to defraud the plaintiff and other creditors.

Heyman Hagedorn, being out of the state, was not served with summons. He verifies the answer of the corporate defendant as treasurer, and says in the verification that he "is familiar with its business." In paragraph 2 of said answer it is averred "upon information and belief" that for the last eight years the "defendant Heyman Hagedorn" has resided in Pennsylvania and New York for business reasons.

Desiring to prócure evidence for the trial, plaintiff obtained an order requiring Heyman Hagedorn, president and treasurer of the Forsyth Equipment Company, to appear before the clerk on December 14, 1935, and be adversely examined under C.S. § 900. Said officer failed to appear; whereupon, after notice it was ordered, as authorized by C.S. § 903, that the defendant's answer be stricken out, with the proviso that the same should not become effective until January 20, 1936 "and if the defendant Heyman Hagedorn, as treasurer of Forsyth Equipment Company, shall appear before the clerk on Saturday, January 18, for the purpose of said examination then the order striking out the pleadings of the defendant shall be, and the same is hereby, rescinded; otherwise, it shall remain in full force and effect."

From this order, the corporate defendant, Forsyth Equipment Company, appeals, assigning errors.

Appeal from Superior Court, Guilford County; Pless, Judge.

Sapp & Sapp, of Greensboro, for appellant Forsyth Equipment Co.

Herbert S. Falk and Max J. Kane, both of Greensboro, for appellee.

STACY Chief Justice.

We are precluded from deciding the questions debated on brief and argument, i.e., the power of the court to order Heyman Hagedorn, individually or as treasurer of the corporate defendant, to appear for examination under C.S. § 900, and to strike out the answer under authority of C.S. § 903 for failure to comply, because of the alternative condition attached to the order, which renders it void. Myers v. Barnhardt, 202 N.C. 49, 161 S.E. 715; Flinchum v. Doughton, 200 N.C. 770, 158 S.E. 486; Lloyd v. Lbr. Co., 167 N.C. 97, 83 S.E. 248; Strickland v. Cox, 102 N.C. 411, 9 S.E. 414.

In McIntosh on N.C.Practice and Procedure, page 731, it is said "A conditional judgment is one whose force depends upon the performance or...