Nassif v. Goodman
| Decision Date | 02 November 1932 |
| Docket Number | 118. |
| Parties | 203 N.C. 451, 86 A.L.R. 215 v. GOODMAN et al. NASSIF et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Johnston County; Harris, Judge.
Action by C.J. Nassif and another, trading as Nassif Bros., against Arthur Goodman and others. From the judgment for plaintiffs named and certain other defendants appeal.
No error.
In action for malicious institution of bankruptcy proceeding evidence showing plaintiffs' standing as merchants held competent in showing damages (Bankr. Act [11 USCA]).
The plaintiffs are merchants, and on March 5, 1930, and for many years prior to said date, were engaged in the business of buying and selling, at retail, dry goods, clothing, and other merchandise in stores owned and operated by them at Wagram N. C., and at Smithfield, N. C.
The defendants, other than Thomas E. Bass, are also merchants and on March 5, 1930, and for many years prior to said date were engaged in the business of selling, at wholesale, merchandise of various kinds, and especially the kinds bought and sold by the plaintiffs. The defendants Arthur Goodman and A. Schreter & Son, Inc., are residents of the city of Baltimore in the state of Maryland, where each has his principal place of business. The defendant, Samuel Saffer, is a resident of the city of New York, where he has his principal place of business. On March 5, 1930, the said defendants were creditors of the plaintiffs; the aggregate amount of their several claims being in excess of $500. These claims against the plaintiffs were all in the hands of the defendant Thomas E. Bass for collection. The said Thomas E. Bass is a resident of the town of Tarboro, N. C., where he is engaged in the practice of his profession as an attorney at law. He is a member of the firm of McNair, Moses & Bass, attorneys at law, and has been duly admitted to practice as an attorney in the United States District Court for the Eastern District of North Carolina.
On March 5, 1930, the defendant, Thomas E. Bass, in the name and on behalf of his codefendants in this action, instituted an involuntary proceeding in bankruptcy against the plaintiffs, by filing a petition in the United States District Court for the Eastern District of North Carolina. It was alleged in said petition that the plaintiffs were then insolvent, and that, while insolvent, they had committed various acts of bankruptcy, as specifically alleged in the petition. The prayer of the petition was that the plaintiffs be adjudged bankrupts, in accordance with the provisions of the act of Congress (11 USCA). The petition was verified by the said Thomas E. Bass, as attorney for his codefendants, who were named therein as the petitioning creditors. Simultaneously with the filing of said petition, the defendants prayed the court to appoint a receiver with power to take charge of and hold the property of the plaintiffs until they had been adjudicated as bankrupts, in accordance with the prayer of their petition. A receiver was thereupon appointed by the court, and said receiver, as authorized by the court, took charge of the property of the plaintiffs, including the stocks of goods in the stores at Wagram and at Smithfield, and held the same for about twenty-one days, until the receiver was discharged and said property restored to the plaintiffs by order of the court.
Immediately upon the service upon them of the petition filed by the defendants in the United States District Court for the Eastern District of North Carolina, the plaintiffs filed an answer to said petition, in which they denied the allegations therein that they were insolvent and that they had committed acts of bankruptcy as alleged by the defendants. The proceeding was thereupon referred by the court to the referee in bankruptcy as a special master, who, after hearing evidence offered by both the petitioning creditors and the respondents, filed his report to the court, in which he set out his findings of fact and his conclusions thereon. The referee and special master found, and so reported to the court, that the plaintiffs were solvent and that they had not committed any act of bankruptcy. He recommended that the court dismiss the petition and order the defendants to pay the costs of the proceeding. The report of the referee and special master was heard by the court, and confirmed in all respects. It was ordered that the petition filed by the defendant be and the same was dismissed, and that the defendants pay the costs of the proceeding. It was further ordered by the courts that the cause be and it was retained for the purpose of making allowances for costs, expenses, and damages occasioned to the plaintiffs by the seizure, taking and detention of their property, as provided for in the bond filed in the proceeding by the defendants, as petitioning creditors, and "for no other purpose." This order was made on April 26, 1930.
At the date of the institution of the involuntary proceeding in bankruptcy by the defendants against the plaintiffs, the defendants filed a bond in said proceeding. This bond was in the sum of $1,000, and was conditioned for the payment to the plaintiffs by the defendants of all costs, expenses, and damages occasioned by the seizure, taking, and detention of the property of the plaintiffs, as the result of the filing of the petition in said proceeding, in the event that said petition was, dismissed. After the answer to the petition was filed by the defendants, it was ordered by the court that the defendants, as petitioning creditors, file a bond in the sum of $10,000, with like condition as the bond filed by them in the sum of $1,000. The defendants did not comply with this order.
This action was begun in the superior court of Johnston county on October 28, 1930. The summons was duly served on the nonresident defendants by publication. Attachments levied on the property of said defendants in this state were vacated on November 10, 1930, upon the filing by said defendants in this action of a bond in the sum of $16,000 with the Fidelity & Deposit Company of Maryland, as surety, conditioned that the said defendants pay such judgment as may be rendered against them in this action, together with all costs.
At the trial of the action, motions for judgments as of nonsuit made at the close of the evidence for the plaintiffs by the...
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