Wilson v. Chichester
| Decision Date | 07 November 1890 |
| Parties | WILSON v. CHICHESTER et al. |
| Court | North Carolina Supreme Court |
It appears that Edward A. Prior & Co., before the 18th day of April, 1889, obtained a judgment in the superior court of the county of Guilford for $466.46, and costs, against W. T Chichester, which judgment was duly docketed in the judgment docket of that court, and execution issued thereupon, and the same was duly returned by the sheriff, unsatisfied because he found no property to satisfy the same or any part thereof. Thereafter, on the day above specified, the said judgment creditors began their proceedings supplementary to the execution, and the said judgment debtor, on the 19th of the same month, appeared before the clerk of said court, and was examined in respect to his property, etc., and sundry other witnesses were likewise so examined. The examination of such witnesses was duly taken in writing and filed. In the course of such proceedings, the court (the clerk) was of opinion that $592.50, in the hands of a witness, S. Einstein belonged to said judgment debtor, and it made an order that the said sum of money be paid into court; and, accordingly the same was so paid. Afterwards, on the 26th of April, 1889 J. M. Chichester made claim to the money above mentioned. The court thereupon appointed the present plaintiff receiver of the estate, property, rights, and choses in action of the said judgment debtor. Afterwards, the present plaintiff, receiver, brought this action against the said judgment debtor and J. M. Chichester, to recover the said sum of money, the purpose being to try the right to the same. Afterwards, C. R. Chichester and G. P. Chichester, trading as Chichester Bros., were made parties defendant in the action. They made defense and alleged that the said money belonged to them and not to either of their co-defendants. The answers of the defendants raised issues of fact and law. The court submitted to the jury the following issues: "Is W. T. Chichester the owner of the money paid into court, $592.50?" "Who is the owner of the $592.50, if W. T. Chichester is not?" The jury responded to the first of these issues "Yes," and made no response to the second one. On the trial, the plaintiff offered in evidence the written examination of the said judgment creditor, the like examinations of the said S. Einstein and J. M. Chichester, taken and filed in the proceedings supplementary to execution first above mentioned. The defendants each objected to such admission, but the court overruled their objections and allowed the said examinations to be read to the jury; and the defendants excepted. There was other evidence received and objections and exceptions thereto by the defendants, but the same need not be here reported. Upon the verdict, the court gave judgment for the plaintiff, and the defendants appealed.
In supplementary proceedings, the court found that money in the hands of a witness belonged to the judgment debtor and ordered it paid into court. A third person claimed the money, and the court appointed a receiver of the debtor's property, by whom an action to recover the money was brought against the judgment debtor, the claimant, and others, who asserted title to the money. The jury found that it belonged to the judgment debtor, and judgment was entered for the receiver. Meanwhile the money had remained in possession of the court. Held that, as all the redress sought could have been obtained in the original action pending when the second was brought, the judgment will be reversed, and the action dismissed.
J. A. Barringer, for appellants.
W. S. Ball, for appellee.
MERRIMON C.J., (after stating the facts as above.)
This action is brought by the receiver appointed in the course of the proceedings supplementary to the execution above mentioned, and the judgment debtor in such proceedings is made a party defendant to this action. Why he is made such party does not appear. Indeed he is not a necessary or proper party defendant or at all a proper party thereto. He does not, in contemplation of law, seek to recover from him the money in controversy specified in the pleadings, or any redress against him. He, as receiver, already, by operation of law, has whatever and all the right, claim, interest, and title to that money of the defendant judgment debtor. Then wherefore shall he bring this action against him? What pertinent purpose is served by it as to him? All proper redress as to him may and ought to be sought in the proceedings supplementary to the execution. The purpose of this action ought to be to recover from third parties claiming and having it, the money in controversy, which the plaintiff alleges he has the right to have, as such receiver. The statute (Code, §§ 494, 497) in cases like this, vested...
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