Pearce v. Elwell

• Decision Date: 26 March 1895
• Citation: 21 S.E. 305,116 N.C. 595
• Parties: PEARCE et al. v. ELWELL et al.
• Court: North Carolina Supreme Court

21 S.E. 305

116 N.C. 595

PEARCE et al. v. ELWELL et al.

Supreme Court of North Carolina

March 26, 1895

Appeal from superior court, Robeson county; Bryan, Judge.

Action by Robeson & Co., Pearce Bros. & Co., and others against J W. Elwell and others for the appointment of a receiver. From a judgment appointing a receiver as to defendant J. W Elwell, and refusing the application as to the other defendants, plaintiffs appeal. Reversed.

A complaint on an application for receivers alleged that defendant debtor and other defendants named, all of whom were insolvent, had combined to defraud the plaintiff out of his claims against the debtor. None of the defendants except the debtor denied these allegations. The court appointed a receiver for the debtor, but refused as to the other defendants. Held, that such refusal was error.

Battle & Mordecai and McNeill & McLean, for appellants.

FURCHES J.

This is an application for a receiver, heard by Bryan, J., from whose order plaintiffs appealed to this court. The motion was heard upon plaintiffs' complaints, used as affidavits, the affidavit of W. H. Miller, and the answer of J. W. Elwell used as an affidavit. The judge does not find the facts, but simply renders his judgment, appointing a receiver as to Elwell, and refusing to appoint a receiver for the other defendants. If his honor had found the facts, this court has the right to review his finding (Coates v. Wilkes, 92 N.C. 376); and it certainly has the right to find the facts where they were not found by the court below if it has the right to review his findings. We are not inadvertent to the fact that cases may be found where it is held that this court cannot review the findings of fact in the court below. But they are distinguishable from this case. Then, the fact that Elwell and Woolard, doing business under the firm name of Elwell & Co., are indebted to the plaintiffs, is alleged and not denied. The complaints both allege, as well as the affidavit of W. H. Miller, that all the defendants are insolvent; that M. S. Lassiter is the wife of M. B. Lassiter and that Sam Lassiter is the infant son of M. B. Lassiter, and that the sale, or pretended sale, of Elwell to M. B. Lassiter, and the pretended sale of M. B. Lassiter to his wife and infant son, were all a part of a fraud concocted from the beginning to cheat and defraud the plaintiffs out of their just debts; that defendants have made different and contradictory statements as to the terms of said...