Jenette v. Hovey & Co.

• Decision Date: 14 September 1921
• Docket Number: 21.
• Parties: JENETTE ET AL. v. HOVEY & CO. ET AL.
• Court: North Carolina Supreme Court

108 S.E. 301

182 N.C. 30

JENETTE ET AL. v. HOVEY & CO. ET AL.

No. 21.

Supreme Court of North Carolina

September 14, 1921

Appeal from Superior Court, Pasquotank County; Allen, Judge.

Action by W. H. Jenette and others against Hovey & Co. and the First & Citizens' National Bank of Elizabeth City, N.C. The Mars Hill Trust Company intervened. From an order of the court overruling the motion to dismiss the action and vacate the attachment, defendant Hovey & Co. appeals. Affirmed.

Plaintiffs citizens of this state, having a cause of action against Hovey & Co., a foreign resident corporation, for an alleged breach of contract, instituted this suit in the superior court of Pasquotank county and sought to obtain service upon the defendant by attaching the proceeds of a certain draft in the hands of the First & Citizens' National Bank, of Elizabeth City, N. C.; said funds presumably belonging to the defendant. Summons was issued January 28, 1920, and duly served on the garnishee bank, but returned, on the day of its issuance, as to Hovey & Co., "Not to be found in North Carolina." On the same day, plaintiffs secured from the clerk of the superior court a warrant of attachment, after filing proper affidavit and giving bond as required by statute, and the sheriff duly levied upon the above-mentioned funds, said to be the property of the defendant. The warrant of attachment was served immediately, and made returnable on the 17th day of February, 1920.

Thereafter on October 30, 1920, the Mars Hill Trust Company, a Maine corporation, was allowed to intervene and set up its claim of title to the proceeds of said draft. The funds were turned over to the intervener by order of court, upon the execution and filing of a good and sufficient bond "for the protection of all parties to this cause." The plaintiffs' complaint and answer of the intervener, Mars Hill Trust Company, were filed on December 27, 1920. The defendant Hovey & Co. has not answered.

At the January term, 1921, this cause being on the docket for trial Hovey & Co., through its attorney, entered a special appearance and moved to dismiss the action and to vacate the attachment, alleging that no valid service of the summons or warrant of attachment had been made, by publication or otherwise, as required by law. While this motion was being heard before his honor in the superior court, plaintiffs filed with the clerk an affidavit and obtained from him an order of publication, to which reference is made in the judgment of the court, as follows:

"Pending the determination of the motion of Hovey & Co. on its special appearance, said motion not being determined the day it was made, an affidavit for publication was filed by plaintiffs, and an order of publication was signed by the clerk of the superior court--said affidavit being also filed before the clerk--which affidavit and order appear in the record, to which reference is made, and publication was commenced as set forth in copy of notice appearing in the record. The said affidavit and order of the clerk and publication were made without the knowledge or approval of any parties to the action, other than plaintiffs, and without the knowledge of the judge before whom the motion to dismiss was pending. It appearing to the court that at the time of the institution of the action an affidavit as set out in the record was filed in this cause, though no order of publication was actually signed, the court in its discretion orders and permits the plaintiffs to proceed with the publication pending the determination of this motion, in accordance with the order of the clerk made herein. It is further ordered that the motion of the defendant Hovey & Co., upon its special appearance, to dismiss the action and vacate the attachment, be and the same is hereby overruled."

The defendant Hovey & Co. noted an exception and appealed.

W. A. Worth, of Elizabeth City, for appellant.

Ehringhaus & Small, of Elizabeth City, for appellees.

STACY, J. (after stating the facts as above).

This action was brought to recover damages for an alleged breach of contract growing out of an agreement on the part of the defendant Hovey & Co. to deliver a certain quantity of seed Irish potatoes to the plaintiffs at Elizabeth City, N. C., during the month of January, 1920. The defendant being a nonresident corporation and having no process agent in this state, could not be served personally with summons; hence service was sought to be obtained by issuing a warrant of attachment and levying upon the proceeds of a draft in the hands of the First & Citizens' National Bank, of Elizabeth City, N. C., it being alleged that said funds belonged to Hovey & Co. The defendant through its counsel, entered a special appearance, and upon the facts as above stated moved to dismiss the attachment for want of any service of process, alleging that none had been made, either personally or by publication.

From an adverse ruling on this motion, the defendant Hovey & Co. excepted and immediately appealed, which it had a right to do under a number of decisions of this court. Finch v. Slater, 152 N.C. 155, 67 S.E. 264, and Warlick v. Reynolds, 151 N.C. 606, 66 S.E. 657. The motion to dismiss the attachment affects a substantial right, and from the court's refusal to grant the same a present appeal will lie. Sheldon v. Kivett, 110 N.C. 408, 14 S.E. 970; Roulhac v. Brown, 87 N.C. 1; Judd v. Mining Co., 120 N.C. 397, 27 S.E. 81.

The appellant rests its...