Whitaker v. Wade

• Decision Date: 13 October 1948
• Docket Number: No. 243.,243.
• Citation: 229 N.C. 327,49 S.E.2d 627
• Parties: WHITAKER. v. WADE.
• Court: North Carolina Supreme Court

229 N.C. 327

49 S.E.2d 627

WHITAKER.

v.WADE.

No. 243.

Supreme Court of North Carolina.

Oct. 13, 1948.

Appeal from Superior Court, Wayne County; Paul B. Edmundson, Special Judge.

Action by E. W. Whitaker against Marvin Wade, Jr., to recover on an open account for merchandise sold and delivered in which an ancillary warrant of attachment was issued. Defendant, by answer, sought damages for wrongful attachment. From that part of judgment which was favorable to defendant, plaintiff appeals.

Modified and affirmed.

Civil action to recover on open account for merchandise sold and delivered in which an ancillary warrant of attachment was issued.

Plaintiff instituted this action to recover $1,856.25, with interest, alleged to be due onopen account. At the same time he sued out a warrant of attachment. The affidavit upon which the warrant was issued avers that defendant, a resident of this State, "is about to remove his property from the State with intent to defraud his creditors * * *" He filed attachment bond in the sum of $500. The sheriff levied upon one Fruehauf trailer and one 1945 Autocar tractor. Thereupon defendant filed his bond in the sum of $2,000, conditioned as required by statute, and the property seized was returned to him.

The defendant in his answer denies that he was about to remove his property from the State with intent to defraud his creditors and alleges that plaintiff's affidavit was false and fraudulent and made for the purpose of injuring defendant and his good name; that the warrant of attachment was wrongfully issued; and that the seizure of his property was wrongful and unlawful. He prays judgment in the sum of $2,000.

When the cause came on for trial in the court below, issues were submitted to and answered by the jury as follows:

"1. In what amount, if anything, is the defendant indebted to the plaintiff?

"Answer: $1425.00 with interest from the 25th day of January, 1947.

"2. At the time the warrant of attachment was issued was the defendant about to remove his property from the State with intent to defraud his creditors?

"Answer: No.

"3. In what amount, if anything, has the defendant been damaged by the attachment?

"Answer: $.25."

The plaintiff excepted to the submission of the second and third issues and, upon the coming in of the verdict, moved to set aside the verdict on these issues. The motion was denied and plaintiff excepted. The court signed judgment for plaintiff on the first issue and for defendant on the third issue. The judgment likewise vacated the attachment and discharged the surety on defendant's replevin bond. Plaintiff excepted and appealed.

J. T. Flythe, of Mt. Olive, and J. Faison Thomson, of Goldsboro, for plaintiff-appellant.

No counsel contra.

BARNHILL, Justice.

The ancillary writ of attachment may be issued only on one or more of the grounds specified by statute, G.S. § 1-440.3, and the grounds upon which it is issued must be made to appear by affidavit. G.S. § 1-440.11.

When the defendant contests the grounds on which the writ issued, the statute provides a ready means of attack upon the writ without awaiting the trial of the main issue. G.S. § 1-440.36. But this remedy is not exclusive. G.S. § 1-440.41. He may make the necessary allegations in his answer by way of defense and await the trial. Bizzell v. Mitchell, 195 N.C. 484, 142 S.E. 706. This latter course was pursued by the defendant. The falsity of the averment in plaintiff's affidavit is sufficiently alleged. Hence the submission of the second issue must be sustained. See G.S. § l-440.36(c).

The jury having found by their answer to the second issue that the attachment was wrongfully issued, it was proper for the court to dissolve the attachment and discharge the defendant's surety from liability. Bizzell v. Mitchell, supra.

Prior to 1947, there was no provision in the statute G.S. Chap. 1, art. 35, for the assessment of damages in the original action against the plaintiff and his surety for the wrongful issuance of a warrant of attachment. The defendant was compelled to pursue his remedy by independent action after the groundlessness of the action or the ancillary writ was judicially determined. Kramer v. Thomson-Houston Electric Light Co., 95 N.C. 277; Mahoney v. Tyler, 136 N.C. 40, 48 S.E. 549; Hoft v. Coastwise Shipping & Lighterage Co., 215 N.C. 690, 3 S.E.2d 20; Annotation, 85 A.L.R. 648.

But the Legislature in 1947, by Chap. 693, Session Laws of 1947, revised and reinac-ted G.S. Chap. 1, art. 35, making certain material changes therein. See G.S. § 1- 440.1 et seq. Part 6 of Chap. 693, Session Laws of 1947, is entitled ...