Luttrell v. Martin

• Decision Date: 05 May 1893
• Court: North Carolina Supreme Court
• Parties: LUTTRELL et al. v. MARTIN et al.

17 S.E. 573

112 N.C. 596

LUTTRELL et al.

v.MARTIN et al.

Supreme Court of North Carolina.

May 5, 1893.

Attachment — Affidavit — Summons —Amendment of Return — Corporations—Powers of Agents—Trial—Appeal.

1. Though an appeal does not lie from a refusal to dismiss an action, it may be reviewed on appeal from a final judgment rendered in such action.

2. Where summons is served, and the sheriff's return is indorsed in proper form on the summons, but is unsigned, it is within the discretion of the court to permit the sheriff to amend the return by signing it nunc pro tunc.

3. Code, § 349, provides that, to entitle plaintiff to a writ of attachment, he must show by affidavit that one of the causes enumerated by section 317 exists; or that defendant is either a foreign corporation or a nonresident of the state; or, if a natural person and a resident, that he has departed therefrom with intent to defraud creditors; or, if a natural person or domestic corporation, he or it has removed, or is about to remove, property from the state with intent to defraud creditors, or has or is about to assign or secrete it with like intent. Held that, to obtain an attachment, it is not necessary that defendant cannot he found in the state. Sheldon v. Kivett, 14 S. E. Rep. 970, 110 N. C. 408, explained.

4. It is not error to refuse to submit issues at the request of a party, where such issues are substantially covered by those already submitted.

5. A general agent of a corporation may delegate to another his authority to purchase supplies for the corporation.

6. Requests for instructions, presented some time after the close of the testimony, will not he considered.

7. Where the jury found an issue before separating, it was not error to permit them to reassemble, and write it down.

8. Recitals of fact set out as grounds for a motion for a new trial, which are not in the record, and are not found as facts by the trial court, cannot be considered.

Appeal from superior court, Burke county; James D. McIver, Judge.

Assumpsit by S. B. Luttrell & Co. against John L. Martin and the Piedmont Lumber, Ranch & Mining Company, a domestic corporation. There was judgment for plaintiffs, and defendant the Piedmont Lumber, Ranch & Mining Company appeals. Affirmed.

M. Silver and I. T. Avery, for appellant.

S. J. Ervin, for appellees.

CLARK, J. The appeal from the refusal to dismiss the action was held premature in this case, (111 N. C. 528, 16 S. E. Rep. 325;) but the exception, having been noted, now comes up for review without prejudice, on this appeal from the final judgment, (Guilford Co. v. Georgia Co., 109 N. C. 310, 13 S. E. Rep. 861.)

It was admitted that the summons had been served on the agent of defendant corporation February 23, 1892, but the return of the sheriff was unsigned, though indorsed in proper form on the summons. The judge did not exceed his powprs, but. exercised them properly, in permitting the sheriff to sign the return nunc pro tunc. Clark v. Hellen, 23 N. C. 421; Henderson v. Graham, 84 N. C. 496; Walters v. Moore, 90 N. C. 41; Williams v. Weaver, 101 N. C. 1, 7 S. E. Rep. 565. Indeed, the sheriff had of right till the first day of that terra to make the return. Code, § 200. So far as the attachment is considered as the basis of a publication to bring the defendants into court, it is unnecessary to consider whether it was regularly sued out or not, as to the defendant corporation, since the summons was served on its agent, —Code, § 217 subd.l; nor as to the defendant Martin, for he submitted to the verdict and judgment, and has not appealed.

The affidavit to procure publication of summons must contain an averment that the defendant "cannot after due diligence, be found within this state." Code, § 218. But this is not required for an attachment Code, § 349.¹ It is because attachments are rarely issued except against nonresidents, for whom publication must be made, that the two requirements are often confused. It is not requisite, and therefore need not be averred, '.that the defendant cannot be found in the state, in order to procure a warrant of attachment. The headnote in Sheldon v. Kivett, 110 N. C. 408, 14 S. E. Rep. 970. is mislead-ins. It was the order of publication which was there amended. In some instances, as in the present, an attachment may issue against a resident of the state or a domestic corporation. Even had the motion to dismiss the attachment been improperly refused in this case merely, the judgment in that respect would have been modified. Being an ancillary remedy, this would not have affected the regularity of the proceedings and verdict, nor of the judgment in other respects.

The issues tendered by the defendants were preferable to those actually submitted, but the defendants suffered no prejudice, as every phase of their case could have been, and was, submitted to the jury. Humphrey v. Board, etc., 109 N. C. 132, 13 S. E. Rep. 793, and cases there cited.

The defense set up in the answer, that the contract was invalid as to defendant corporation under Code, § 683, because not in writing, is not good, because it is an executed, and not an executory, contract. Curtis v. Mining Co., 109 N. C. 401, 13 S. E. Rep. 944; Roberts v. Wood Working Co., 111 N. C. 432, 16 S. E. Rep. 415. This section (683) was repealed by the legislature of 1893. As to this appellant, certainly, the judge properly held that the cause stood for trial at spring term, 1893. The other defendant is not complaining. This defendant was not a nonresident, but a domestic corporation, and the affidavit for publication, February 1, 1893, against the other defendant, Martin, by the recital therein that there was then no agent of the appellant corporation in this state, does not annul the sheriff's return, and the admission of service upon the agent...