Witz v. Gray

• Decision Date: 19 February 1895
• Citation: 20 S.E. 1019,116 N.C. 48
• Parties: WITZ et al. v. GRAY et ux.
• Court: North Carolina Supreme Court

20 S.E. 1019

116 N.C. 48

WITZ et al. v. GRAY et ux.

Supreme Court of North Carolina

February 19, 1895

Appeal from superior court, Beaufort county; Brown, Judge.

Action by Witz, Biedler & Co. against S. A. and J. M. Gray. From an order overruling a motion for the appointment of a receiver and judgment thereupon for defendants, plaintiff's appeal. Affirmed.

Exhibit A, referred to in the opinion, is as follows: "$735.85. Washington, N. C., June 6, 1893. One hundred and thirty-one days after date, I promise to pay to the order of Witz Biedler & Co. seven hundred and thirty-five 85/100 dollars at Bank of Washington, Washington, N. C., without offset, for value received. Mrs. S. A. Gray, per J. M. Gray."

A petition in an action to charge the separate estate of a married woman should describe the separate property.

W. B. Rodman, for appellants.

J. H. Small and Shepherd & Busbee, for appellees.

FURCHES J.

This is an action of Witz, Biedler & Co. against J. M. Gray and S. A. Gray, husband and wife, to recover $735.85 for goods sold to defendants, for which note marked "Exhibit A" was afterwards given to plaintiffs, and is brought to this court upon a motion for a receiver before Brown, J., which was refused, and plaintiffs, appealed. This motion is made, then, in aid of the main relief demanded; and, to entitle plaintiffs to this relief, they must allege and show that they are entitled to the main relief,--that is, that they are entitled to recover a personal judgment against S. A. Gray, if she were a feme sole. And then they must show their equity to entitle them to this ancillary relief in aid of their main relief.

Plaintiffs cannot have this ancillary relief under the first count in their complaint, for the reason that they have failed to name and describe any separate estate as belonging to the feme defendant. Jones v. Craigmiles, 114 N.C. 613, 19 S.E. 638. Plaintiff's cannot have this relief under the second count in their complaint for the same reasons assigned above (Jones v. Craigmiles. supra), and for the further reason that in this count they allege that they sold the goods to J. M. Gray, and that he is their debtor, and not S A. Gray, the wife. And plaintiffs cannot have this relief under the fourth count in their complaint for the reasons given why they are not entitled to relief under the first count (Jones v. Craigmiles, supra) and for the further reason that, if they are entitled to recover on this count in their complaint, it would be upon the grounds of fraud practiced on plaintiffs by defendants in the purchase of the goods shipped to them, and that the title never vested in defendants, but is still in plaintiffs. But it is not alleged that the goods now in the store of defendants are the same shipped to them in 1893, which would be necessary to allege and show, to entitle plaintiffs to their motion under this count. In fact it was conceded by the learned counsel for plaintiffs that they were not entitled to this motion under either of these three counts, but he insisted that he is entitled to have a receiver appointed on the third count in his complaint. And this brings us to one of the questions to be considered and determined in this appeal, and we are of the opinion that plaintiffs are not entitled to a receiver under this count. We have said that plaintiffs are not entitled to have this ancillary relief unless they are entitled to the main relief demanded in their complaint; that is, unless they are entitled to a personal judgment against Mrs. Gray, were she a feme sole. It is not alleged that Mrs. Gray signed the note declared on, but that J. M. Gray, the husband, signed the note, and that he was the agent of his wife, and, as such agent, was authorized to do so. The allegation of the complaint that plaintiffs insist constituted...