Armstrong v. Kinsell, 164 N.C. 125 (1913)

Dec. 10, 1913 · Supreme Court of North Carolina
164 N.C. 125


(Filed 10 December, 1913.)

1. Injunctions — Distinctions Abolished — Code Practice — Interpretation of Statutes.

Under our Code practice the difference between special and common injunctions has been abolished, and they are ancillary to the relief sought in the actioh, and dependent upon service of process upon the defendant therein in accordance with the modes recognized by statute.

2. Injunctions — Bills and Notes — Banks and Banking — Nonresident Defendant — Process—Attachment.

Where the maker of a note brings his action against a nonresident payee to impeach his note upon the ground of fraud or false representations in its procurement, and seeks an injunction restraining the payee from further negotiating it, and a resident bank, where it had been deposited, from parting with its possession, it is necessary to show personal service of the summons on the nonresident defendant or his duly authorized agent, or some act of his amounting to a waiver thereof; and the issuance of the restraining order on the bank, depending upon proper service of process on the payee, will likewise be dismissed where a special appearance has been entered for that purpose, and there has been no service or waiver of process by the nonresident defendant. The remedy is by attachment of the note in the hands of the bank, under the provisions of Revisal, sec. 777, and publication of notice to the nonresident defendant based thereon. Bernhardt v. Brown, 118 N. C., 701, cited and applied.

*126Appeal by plaintiff from Whedbee, J., at October Term, 1913, of CRAVEN.

Ernest M. Green for plaintiff.

Charles R. Thomas for defendants.

Clark, C. J.

Tbe plaintiff executed to defendant Burusell two notes for $400 eacb, payable at tbe National Bank of New Bern, respectively,- on 3 January, 1914, and 3 September, 1914, for tbe balance due on purchase of a “merry-go-round” on wbicb be bad made a casb payment. These notes were deposited with tbe defendant bank for collection. On arrival of tbe machine, being dissatisfied with its condition, tbe plaintiff brought this action, alleging false representation and breach of warranty and asking damages to tbe extent of tbe balance, of tbe purchase money and an injunction against tbe defendant Kinsell from negotiating or transferring said notes and against tbe bank to prevent its parting with tbe custody thereof until tbe further orders of tbe court.

Tbe defendant Kinsell entered a special appearance and asked to dismiss tbe action and to vacate and dissolve tbe 'restraining order, upon tbe ground that there bad been no personal service of tbe summons upon him and no appearance, or acceptance of service, and asking that tbe injunction be dissolved and that tbe action be dismissed.

. Under tbe system of procedure prior to tbe adoption of The Code, injunctions were special or common. Tbe former was where tbe injunction itself was tbe relief sought, while a common injunction was an ancillary proceeding; but under Tbe Code all injunctions are'simply ancillary proceedings and cannot issue except when there is an action pending in court, in wbicb jurisdiction has been obtained in one of tbe modes recognized by tbe statute. These are fully discussed and distinguished in Bernhardt v. Brown, 118 N. C., 701. They are:

(1) Personal service, or, in lieu thereof, acceptance of service or a waiver by appearance.
(2) Proceedings in rem, in wbicb tbe court already has jurisdiction of the, res as to enforce some lien or a partition of property in its control, and tbe like. In these cases publication of *127the' summons or notice may be made, but the judgment has no personal force, not even for the costs, being limited to acting upon the property. •
(3) Proceedings quasi in rem, in which cases the court acquires jurisdiction by attaching .property of a nonresident or of an absconding debtor (Winfree v. Bagley, 102 N. C., 515), and in similar eases, and the judgment has no effect • beyond the enforcement of the judgment out of the property seized by the attachment. In such cases publication of the summons or notice may be made based upon the jurisdiction of the property attached. Revisal, 442 and 442 (3); Grocery Co. v. Bag Co., 142 N. C., 174.

Proceedings in. divorce are sui generis, as the' judgment tliereih merely declares a personal status, and publication of the summons is allowed without the acquisition of jurisdiction by attachment of property, where the défendant is a nonresident, the court having jurisdiction of the person of the plaintiff.

The distinction between the above proceedings or methods of bringing parties into court is fully pointed out in Bernhardt v. Brown, supra, p. 706, with citation of authorities: Pennoyer v. Neff, 95 U. S., 714; Winfree v. Bagley, 102 N. C., 515; Long v. Insurance Co., 114 N. C., 465; Heilbetter v. Oil Co., 112 U. S., 294. Bernhardt v. Brown has been repeatedly cited; see Anno. Ed.

In this case there was no personal service on the defendant Kinsell nor acceptance of service nor waiver thereof by an appearance. He entered a special appearance and asked to dissolve the injunction and dismiss the proceeding. This is not a proceeding in rem to enforce any lien upon the property or to make partition thereof. Nor has jurisdiction been acquired as in a proceeding quasi in rem, because there has been no attachment issued and levied. An injunction granted before the issuing of a summons is irregular and will be vacated on motion. McArthur v. McEachin, 64 N. C., 72; Hirsh v. Whitehead, 65 N. C., 516. For a stronger reason, it must be vacated when no summons has been served on Kinsell and jurisdiction has not been acquired either by attachment -or by the court being in control of the res.

*128The injunction, therefore, was properly dismissed- as to Ein-sell and also as to the bank,* because as to the latter no cause of action was stated in the absence of the defendant Einsell. We see no advantage to the plaintiff in an injunction against the bank nor even as against Einsell, which cannot be had by the attachment' when procured. Moreover, an injunction as to a nonresident is improvident, for it can have no effect — usually, at least — except in personam. Warlick v. Reynolds, 151 N. C., 606.

Jurisdiction can be acquired as to Einsell by the service of an attachment upon the notes (Revisal, 777) and the publication of a notice based on the jurisdiction thus acquired. Best v. Mortgage Co., 128 N. C., 351; Grocery Co. v. Bag Co., 142 N. C., 180. In Winfree v. Bagley, 102 N. C., 515, it is held in a well considered opinion by Shepherd, J., that “ ‘a chose in action is property, and embraced in the terms of The Code which provides for service by publication’ when the defendant is not a resident of the State, but has property therein.” That case has been repeatedly cited since. See Anno. Ed.

In this case there was no publication of notice nor acquire^ ment of jurisdiction by attachment of the notes. The plaintiff did not ask to amend his proceeding by making the attachment and publication, and the judgment below dismissing the action is