Morrison v. New Haven & Wilkerson Min. Co.

• Decision Date: 04 December 1906
• Parties: MORRISON v. NEW HAVEN & WILKERSON MIN. CO. et al.
• Court: North Carolina Supreme Court

55 S.E. 611

143 N.C. 250

MORRISON v. NEW HAVEN & WILKERSON MIN. CO. et al.

Supreme Court of North Carolina

December 4, 1906

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

Action by W. H. Morrison, administrator of John Seals, deceased against the New Haven & Wilkerson Mining Company and others T. L. Epley and Fleetwood Ward interpleading. From a judgment against Epley and Ward, they appeal. Affirmed as to Ward, and ordered that Epley go without day.

An action having been brought by attachment and without personal service against those who had been the owners of the realty but without making defendants the registered owners, the real owners interpleaded by petition, asking to be made defendants. Such petition contained allegations of an agency in the care of the land, on which plaintiff based his action which allegations were taken advantage of and admitted by plaintiff in his replication. One of such defendants also judicially admitted such agency, though in a subsequent paper, called an "intervention," they ignored such allegations and admissions. Held, that the court properly refused them permission to withdraw from the action.

Civil action, commenced by plaintiff, to recover the value of his intestate's services as a caretaker and agent in charge of mining property. The court submitted the following issues: "(1) Was there any contract to pay the plaintiff's intestate, John Seals, for the taxes and his care of the land their value in excess of the value of the rents? Answer. Yes. (2) If there was, how much, if any, are the defendants Ward and Epley indebted to plaintiff? Answer. $600."" No other issues were tendered. By consent of plaintiff the court reduced the recovery to $250, and rendered judgment against the defendants Epley and Ward, to which they excepted and appealed.

John T. Perkins, for appellants.

BROWN J.

This action was brought February 23, 1904, by attachment and without personal service, against the New Haven & Wilkerson Mining Company and the New Haven & North Carolina Mining Company and George F. Newcombe. Prior to that date, on June 29, 1898, the New Haven & North Carolina Mining Company had conveyed the lands attempted to be attached to George F Newcombe by deed registered in Burke county, July 19, 1898, and George F. Newcombe had duly conveyed the lands to Denslow, Ward & Co. by deed registered July 19, 1898. Denslow, Ward & Co., the registered owners, were not made defendants in the attachment. Inasmuch as the defendants named in the attachment owned no interest in the land attached, and the court had acquired no jurisdiction by service of the summons, the case would have come to an end, but for the interpleading of T. L. Epley and Fleetwood Ward. The latter was a member of Denslow, Ward & Co., of New York, and the owner of half the land and mining property. The former, after commencement of the action, had purchased the other half from E. H. Denslow, the other member of the firm, by deed registered January 11, 1905. For the purpose of defending their title to this property, Epley and Ward, upon their verified petition in writing, were made parties defendant at their own request at December term, 1905, of Burke superior court, and a nonsuit was entered as to George F. Newcombe; he having disclaimed any interest in the property. At August term, 1906, Messrs. Morgan & Perkins, the attorneys who filed the joint petition to be made parties defendant on behalf of Ward and Epley, asked to be allowed to withdraw the same and objected to the order making them defendants. We think his honor very properly disallowed the motion. Epley and Ward had come in of their own accord, upon a joint petition written and presented by their attorneys, setting out their interest in the property and asking to be made defendants. Because they repented of their act afterwards is no reason the court should deny to plaintiff the benefit of their presence in the suit. This is especially true in view of the allegations of the petition filed by them, which plaintiff had a right to take advantage of and to admit that particular allegation which constitutes the basis of his cause of action, as plaintiff did in his replication. The fourth and fifth sections of the petition read as follows: "(4) That, as the said T. L. Epley and Fleetwood Ward are informed and believe, the said J. A. Seals, plaintiff in this cause, well knew prior to the bringing of this suit that said land had long since been conveyed by the said George F. Newcombe to the said Denslow, Ward & Co. That they now have in their possession letters signed in the name, and, as they believe, written by the hand, of the said J. A. Seals, which letters are dated, one November 17, 1898, and the other April 2, 1900, in which letters the said J. A. Seals reports and accounts to the said Denslow, Ward & Co. concerning said land,...