Sherrod v. Dawson

• Decision Date: 15 March 1911
• Citation: 70 S.E. 739,154 N.C. 525
• Parties: SHERROD et al. v. DAWSON, Sheriff, et al.
• Court: North Carolina Supreme Court

70 S.E. 739

154 N.C. 525

SHERROD et al. v. DAWSON, Sheriff, et al.

Supreme Court of North Carolina

March 15, 1911

Appeal from Superior Court, Edgecombe County; Peebles, Judge.

Action by J. M. Sherrod and another, administrator of J. W. Sherrod against B. F. Dawson, Sheriff of Edgecombe County, and another, to restrain the defendants from selling the property of plaintiffs pending the determination of this action, in which is involved the legality of certain taxes levied by the Commissioners of Edgecombe and Martin Counties upon the same personal property, to wit, certain solvent credits. From the judgment, plaintiffs appealed. Reversed.

A suit to enjoin the sheriffs of two counties from selling the same personal property, levied upon by the commissioners of each county for taxes, being in effect a contest between the counties as to the right to tax the property, the court may in its discretion remove the cause to an adjoining disinterested county for trial.

Bunn & Spruill, for appellants.

H. A Gilliam, for appellee Dawson. Harry Skinner, for appellee Crawford.

BROWN J.

The facts as presented by the record are that certain notes and mortgages, solvent credits, are in the hands of J. P. Bunn an attorney of Rocky Mount, N.C. The board of commissioners of Martin county entered said personal property on the tax lists of that county after the death of Dr. J. W. Sherrod, who died intestate in that county on November 7, 1909, claiming that said solvent credits were his property and that they had never been listed for taxation. It is admitted that Dr. J. W. Sherrod was a resident of Martin county at time of and for years before his death. It is admitted that the defendant Crawford has advertised certain cotton and lands belonging to said estate, and in the hands of N. J. Mayo, administrator, for sale to pay said assessment. The tax levied by the commissioners of Martin amounts to $1,690.85. The plaintiff John M. Sherrod is the son of Dr. J. W. Sherrod and has been for some years a citizen and resident of the county of Edgecombe. It is alleged, and plaintiffs offered affidavits in support thereof, that this identical property in the hands of J. P. Bunn, was duly transferred and assigned prior to June 1, 1905, by said J. W. Sherrod to his son, John M. Sherrod, who has been a citizen and resident of Edgecombe county ever since. On the first Monday of April, 1910, after due notice to John M. Sherrod, the board of commissioners of Edgecombe county assessed a tax of $1,831.18 against this property, claiming that the said solvent credits belong to John M. Sherrod, a resident of that county, and have belonged to him since prior to June 1, 1905. The defendant Dawson, sheriff of Edgecombe county, is endeavoring to collect this tax out of the property of the plaintiff John M. Sherrod. The plaintiffs ask to be permitted to pay into court the larger sum assessed, $1,831.18, to abide the judgment of the court as to which county the taxes on said property rightfully belong, and that the defendants be enjoined from selling the property of the plaintiff John M. Sherrod or of the estate of J. W. Sherrod.

The contention that there has been a misjoinder cannot be sustained. All the averments in the pleadings relate to one transaction and one cause of action, to wit, a permanent injunction to prevent the sale of plaintiff's property. Fisher v. Trust Co., 138 N.C. 224, 50 S.E. 659; Ricks v. Wilson, 151 N.C. 48, 65 S.E. 614. All parties in interest are before the court, and its judgment will be binding upon them. If two separate actions were brought, one in Martin and one in Edgecombe, conflicting verdicts and judgments may be rendered, and the result be that the authorities of two counties might levy and collect taxes upon identically the same personal property.

The motion to change the venue and remove the cause to Martin county was properly denied. The cause could have been properly instituted in either county, and the plaintiffs had the right to sue in Edgecombe rather than in Martin, where defendant Crawford resides. The superior court, upon application, may remove the cause to some adjoining county for trial of the issues, as this is practically a contest between two counties over a certain fund, but that is a matter in the sound discretion of that court. It would seem proper that the cause should be determined in a disinterested county.

We are of opinion that plaintiffs are entitled to injunctive relief upon paying into court the larger sum claimed by the defendant Dawson on behalf of the county of...