House Chevrolet Co. v. Cahoon
| Decision Date | 22 September 1943 |
| Docket Number | 90. |
| Citation | 26 S.E.2d 864,223 N.C. 375 |
| Parties | HOUSE CHEVROLET CO., Inc., v. CAHOON et al. |
| Court | North Carolina Supreme Court |
This is an action instituted in Washington County by the plaintiff, the House Chevrolet Company, to collect $275, with interest from 3 January, 1940, from the defendants Edward P Cahoon and Murial Cahoon, alleged to be due on a note executed by said defendants to said plaintiff, wherein the ancillary remedy of claim and delivery was invoked to recover the possession of a certain Chevrolet automobile upon which said defendants Cahoon had executed a chattel mortgage to the plaintiff to secure the payment of the note sued on, that said automobile might be sold and so much of the proceeds of such sale as might be necessary applied to the payment of said note. At the time of the institution of this action in Washington County, the plaintiff had its principal office in that county, and the automobile was in the possession of the defendant Beals in Pasquotank County, and the defendants Cahoon were residents of Tyrrell County.
On 9 July, 1941, summons was issued by the Clerk of Washington County to the Sheriff of Pasquotank County against the defendant Beals, which summons was accompanied by the order in the claim and delivery proceeding directing the Sheriff of Pasquotank to seize the automobile and deliver the same to the plaintiff. Defendant Beals filed a replevy bond and retained the possession of the automobile.
On 12 July, 1941, summons was issued by the Clerk of Washington County to the Sheriff of Tyrrell County for the defendants Edward P. Cahoon and Murial Cahoon, which was duly served on 14 July, 1941. There accompanied the summons, and was served therewith, a copy of an order made by the Clerk of Washington County extending the time for filing complaint until 28 July 1941, based upon application of the plaintiff wherein it is stated that "the nature and purpose of this action are *** to obtain immediate possession of the property described in the affidavit hereto attached to satisfy a debt upon which property the plaintiff is the holder of a chattel mortgage which said debt thereby secured is past due and unpaid".
On 25 July, 1941, the plaintiff filed the only complaint filed in the action in which it alleged: That the plaintiff was a corporation with its principal place of business in Washington County; that the defendants Cahoon became indebted to the plaintiff on 3 January, 1940, in the sum of $275 and executed and delivered a promissory note for said amount on said date; that said note was secured by a chattel mortgage upon a Chevrolet automobile; that no part of said note had been paid, although past due, and that the plaintiff is entitled to recover of the defendants Cahoon the full amount thereof; that the process in claim and delivery had been issued and the said automobile described in the chattel mortgage was in the possession of the defendant Beals in Pasquotank County and had been seized by the Sheriff of that county; that the plaintiff was entitled to have said automobile sold and so much of the proceeds of such sale as may be necessary therefor applied to the payment of said note; and finally prayed that it recover of the defendants Cahoon the full amount of the note, with interest, and that it be adjudged that the plaintiff is entitled to the possession of the automobile, to have the same sold, and the debt owed to it payed from the proceeds of such sale.
The defendant W.A....
To continue reading
Request your trial