McIntosh Grocery Co. v. Newman

• Decision Date: 15 November 1922
• Docket Number: 181.
• Citation: 114 S.E. 535,184 N.C. 370
• Parties: MCINTOSH GROCERY CO. v. NEWMAN.
• Court: North Carolina Supreme Court

114 S.E. 535

184 N.C. 370

MCINTOSH GROCERY CO. v. NEWMAN.

No. 181.

Supreme Court of North Carolina

November 15, 1922

Appeal from Superior Court, Craven County; Calvert, Judge.

Action by the McIntosh Grocery Company against L. C. Newman. Plaintiff excepts to and appeals from the superior court's judgment, setting aside clerk's order that judgment debtor's assets be turned over to sheriff, and remanding the cause for further hearing. Appeal dismissed.

From the facts embodied in the judgment of the clerk, it appears that plaintiff had recovered judgment against defendant in superior court of said county for $427.80 and costs and caused same to be docketed in said county on December 20 1921. That under execution issued upon said judgment the sheriff of the county attempted to levy and collect same on defendant's bank deposit in the National Bank of New Bern, and holding said execution, on Monday, July 17, 1922 issued and served on the bank a notice in terms as follows:

"That under and by virtue of the writ of execution issued from the superior court of Craven county in the above-entitled action and to me issued, I have and do hereby levy upon the funds of L. C. Newman, on deposit in the said bank and any and all debts or indebtedness due by said bank of the said L. C. Newman.

You will further take notice that you are required hereby to furnish to me, the undersigned sheriff of Craven county statement under oath of all such sums on deposit or due by you as said bank to the said L. C. Newman or to appear before the clerk of the superior court within ten days from the date and answer under oath, touching and concerning such matters and things.

You are further notified and directed under and by virtue of said writ to forthwith turn over and deliver to me, the undersigned sheriff, all such sums as may be sufficient to satisfy said judgment in execution, in amount of $468.08."

That at time of notice served defendant had a general bank deposit of $877.97, to closing hours of July 17th, there were checks drawn and paid on said deposit of $33.88. That at said time the bank, among others, held the promissory note of defendant for $475.00, due and payable July 18, 1922, and at said time held other notes of said defendant amounting to $2,000 to $3,000, and had collateral to secure such indebtedness as it matured to the nominal amount of $2,855, as to which the actual value or solvency of the parties has not been determined. That on July 19th, on affidavit properly made, the clerk of the court entered an order requiring that the bookkeeper, an official of the bank, and defendant appear before said clerk for examination on July 28, 1921, touching the property of said Newman then held by the bank.

Upon such examination it appeared that the judgment debtor had no visible or tangible property subject to execution. That, in addition to the $475 due July 18th, he owed the bank from $2,000 to $3,000 not yet matured and secured by collateral in the nominal sum of $2,855. That defendant also produced a list of notes and open accounts held by him other than those deposited with the bank as collateral, aggregating the nominal sum of $6,471.56. That it was not disclosed or made to appear on said examination what was the real value of the notes and accounts of judgment debtor either those held by the bank or otherwise.

Upon the facts as then presented of record the clerk entered judgment as follows:

"It is now ordered that the National Bank of New Bern turn over to the sheriff of Craven county the sum of $877.97, less the amount of checks that had been drawn and presented against the said amount in the aggregate sum of $33.88.

That the defendant, Newman, turn over to the sheriff of Craven county the notes enumerated in the schedule of facts, to wit, the note of John Saunders for $900, secured by deed of trust; notes of Roscoe Jones $100, secured by deed of trust; note of Alec Henderson, $600, secured by deed of trust; and note of James Williams, $500, secured by deed of trust; note of Luke Brown, $500; and the book of account as follows, to wit: Schedule A (these being among the notes held by the bank as collateral).

And that the sheriff proceed to collect the execution in his hands in this action by application of the sum from the National Bank and by sale of the property above enumerated, or so much thereof as may be necessary as provided by law."

To this order the national bank excepted in so far as the same affects its rights and interests, and appeals to the judge of the superior court. On consideration of the appeal the court heard in addition the testimony of the cashier as to the value of the collateral deposited with the bank and entered judgment as follows:

"This matter coming on to be heard before his honor, T. H. Calvert, Judge, W. W. Griffin, cashier of the National Bank of New Bern, was called and testified as follows: That it was impossible to say at this time that the notes, etc., deposited with said bank by defendant, Newman, as collateral security for said Newman's indebtedness to said bank, was sufficient to secure and pay said indebtedness; that some of the notes were collectible and others incollectible; that said Newman's note for $475, and which was payable 18th July, 1922, was also signed by C.J. Bedell, and the same was charged by said bank to said Newman's account on the 18th day of July, 1922.

The court finds the facts appearing are insufficient, the order of the clerk is set...