Mitchell v. Talley

• Decision Date: 21 December 1921
• Docket Number: 400B.
• Parties: MITCHELL v. TALLEY.
• Court: North Carolina Supreme Court

109 S.E. 882

182 N.C. 683

MITCHELL v. TALLEY.

No. 400B.

Supreme Court of North Carolina

December 21, 1921

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

Action by S. S. Mitchell, administrator of W. T. McCuiston deceased, against Carl L. Talley. Judgment for plaintiff by default and inquiry, and on motion of plaintiff that the court proceed to execute the inquiry pursuant to the judgment, Ethel K. Talley intervened, and on her motion judgment was entered that the attachment be vacated and motion to proceed to execute the inquiry was denied, from which judgment plaintiff appeals. Reversed, with directions.

One superior court has no power to revoke or modify the orders and judgment of another in matters of which the latter has acquired and holds jurisdiction.

Civil action to recover damages of the defendant for the willful and wrongful killing of plaintiff's intestate who was a police officer, and at the time of his death was engaged in the discharge of his duty in undertaking to arrest defendant for violation of the prohibition law. Defendant escaped immediately after plaintiff's intestate was killed and personal service on defendant could not be made. At the time of issuing the summons, plaintiff, on proper affidavit secured a warrant of attachment, and same was levied on personal and real property of defendant in said county including a levy on $3,111.60 on deposit in the National Bank of Greensboro. Service of summons by publication having been completed, a properly verified complaint was duly filed, and, defendant having failed to answer, there was judgment by default and inquiry, and later, the case having been called in open court, the plaintiff moved that the court proceed to execute the inquiry pursuant to the judgment. And thereupon Ethel K. Talley, wife of the defendant, having intervened after said judgment by default was entered, moved to vacate the warrant of attachment: First, for that under the statute no such warrant would properly lie in this case, and, second, because the facts alleged as the basis for the application were untrue. And upon said motion the court, being of opinion that the attachment would not lie in an action of this character, entered judgment that the same be vacated. The plaintiff then moved to be allowed to proceed to execute the inquiry, which was refused.

As a basis for the right of Ethel K. Talley to intervene in this cause, it was made to appear in a verified petition filed by the intervener that she was the wife of Carl Talley; that she had four living children of the marriage, aged six, four, and two years, and six months; that her husband was a fugitive from justice, had separated himself from the intervener, and was providing nothing for the support of herself and children; that the petitioner had made application to the superior court of Rockingham county, under section 1667 of the Consolidated Statutes, to obtain alimony without divorce; and that on such her application the judge presiding in said county had ordered and decreed as follows:

"That the plaintiff is entitled to a reasonable subsistence from the property and earnings of defendant, and that the court hereby allots to plaintiff the dwelling house and lot referred to and described in the complaint as a home for herself and said children, and further allots and assigns to her the sum of $100 a month as a reasonable subsistence for her and said children, which sum the defendant is required to pay out of his earnings or other moneys to plaintiff; and if defendant fails to pay said sum on the first day of each and every calendar month, then the same may be collected by execution out of other property or funds of the defendant in the state.

It is further adjudged, that plaintiff have and recover of the defendant the sum of $300 as reasonable subsistence for her and said children from the date of the abandonment of them by the defendant until the date of the making of this order.

And it is further ordered and adjudged, that the defendant be, and he is hereby required to cause all moneys on deposit in the Greensboro National Bank of Greensboro, N. C., assigned or transferred to the clerk of this court as trustee in order to secure compliance with this order.

A certified copy of this order shall be served upon the Greensboro National Bank, to the end that it shall not pay out or permit the transfer of the funds in said bank, except as provided by order in this action, and the allowance to plaintiff is hereby secured by a lien which the court declares upon said fund."

No notice of the motion on which this judgment was entered was served on defendant Talley, and, so far as appears, there has been no service by publication on said Talley of either the notice or the summons in said proceedings, nor has there been any order for such service; but the judgment in said proceedings was entered on allegations in the petition, duly verified, as to the kind and placing of the property, and that the defendant, Carl Talley, her husband, was a fugitive from justice, had abandoned and separated himself from the applicant, and was furnishing no support either for herself or infant children; and that the order applied for was absolutely essential to their subsistence.

From the rulings of the court, adversely affecting his interests, plaintiff, having duly excepted, appealed.

King, Sapp & King, of Greensboro, for appellant.

A. W. Dunn, of Leaksville, and Brooks, Hines & Smith, of Greensboro, for Ethel K. Talley, intervener.

HOKE J.

In the recent case of Tisdale v. Eubanks, 180 N.C. 153 155, 104 S.E. 339, 11 A. L. R. 374, the court, in upholding the writ of attachment in an action for slander, had occasion to refer to the successive statutes controlling the matter, by which the lawful use of this writ has been continuously enlarged until under the latest amendment, Consolidated Statutes, § 798, subsec. 4, the right is extended to actions for "any injury to the person, caused by negligence or wrongful act," and it was there said that the history of this legislation and this, the latest amendment to the law, showed an evident intent on the part of the Legislature to broaden the right to this writ and make the same well-nigh coextensive with any well-grounded demand for judgment in personam. Under this, the correct interpretation, we are of opinion that our statute appertaining to attachments, from the language used and the purpose and policy of the Legislature as evinced in these various amendments, is sufficiently comprehensive to include the action for "causing the death of...