Morganton Mfg. & Trading Co. v. Foy-Seawell Lumber Co.

• Decision Date: 03 December 1919
• Docket Number: 485.
• Citation: 101 S.E. 214,178 N.C. 571
• Parties: MORGANTON MFG. & TRADING CO. v. FOY-SEAWELL LUMBER CO.
• Court: North Carolina Supreme Court

101 S.E. 214

178 N.C. 571

MORGANTON MFG. & TRADING CO. v. FOY-SEAWELL LUMBER CO.

No. 485.

Supreme Court of North Carolina

December 3, 1919

Appeal from Superior Court, Burke County; Long, Judge.

Action by the Morganton Manufacturing & Trading Company against the Foy-Seawell Lumber Company, wherein the Battery Park Bank intervened. From judgment against the intervener on plaintiff's motion, the intervener appeals. Affirmed.

See also, 99 S.E. 104.

Where attached property was sold, and the proceeds deposited in an intervening bank by agreement of the parties made a part of the record, and the bank received the money under the agreement, the court could order the bank, which had undertaken to set up an adverse claim, to pay the money to another commissioner appointed by it, having general superintending power over moneys collected under its process.

This is an appeal from a judgment rendered in the above-entitled action against the respondent the Battery Park Bank of Asheville, N. C., on the motion of the plaintiff, heard out of the district at Statesville, N. C., by consent, upon a rule to show cause why said respondent should not be required to file statement and pay to the commissioner appointed in this action all such funds as had been deposited with it by the defendant or come into its hands since the 10th day of May, 1915, from the proceeds of sales of the property attached in this action.

The said judgment was rendered upon a consideration of the proceedings in this action, as appears of record and on file herein, and the affidavits and proofs offered on said hearing before Judge B. F. Long, as follows:

(1) This action was begun in the Superior court of Burke county on the 26th day of April, 1915, by summons issued out of the superior court of Burke county, and an attachment therein levied upon the property of the defendant, that a part of the said property consisted of a carload of lumber, which was levied on under said attachment at Hickory, in Catawba county, while in the act of being shipped out of the state to M. P. Berglass & Co., of New York, to whom it had been consigned by the defendant.

(2) That shortly after this action was instituted, to wit, on the 10th day of May, 1915, an agreement was entered into between the plaintiff, Morganton Manufacturing & Trading Company, and the defendant, Foy-Seawell Lumber Company, and filed and made a part of the record, whereby it was stipulated that the defendant might sell and dispose of the Berglass car of lumber and other property attached, and deposit the proceeds of such sale or sales with the Battery Park Bank of Asheville, N. C., to be held by said bank pending the outcome of said action; the said agreement reciting, among other things: "That, whereas, a car of lumber has been loaded and billed to M. P. Berglass & Co., of Brooklyn, N. Y., and whereas, the draft covering said shipment has been assigned to the Battery Park Bank of Asheville, N. C., for collection and whereas, a portion of the balance of said lumber, now at Morganton, N. C., has been sold by the defendant: It is therefore agreed that the said car of lumber consigned and billed to the said M. P. Berglass Company, of Brooklyn, N Y., be released from said attachment, and that the proceeds of the sale of said car of lumber be deposited in and held by the Battery Park Bank, of Asheville, N. C., pending the outcome or settlement of said suit, subject to the rights of both plaintiff and defendant, and without prejudice."

(3) That after said agreement had been filed and made a part of the record, as aforesaid, to wit, at the October term, 1915 of the superior court of Burke county, the said Battery Park Bank came into court by and through its attorneys, Lee & Ford, and intervened and made itself a party to this action by filing affidavit in which it set up title under mortgage to a part of the property attached in this...