Mitchell v. Elizabeth City Lumber Co., 169 N.C. 397 (1915)

Sept. 29, 1915 · Supreme Court of North Carolina

169 N.C. 397

J. H. MITCHELL v. THE ELIZABETH CITY LUMBER COMPANY et al.

(Filed 29 September, 1915.)

Attachment — Nonresidents—Replevy Bond — Appearance—Submission to Jurisdiction-Interpretation of Statutes.

Where proceedings in attachment have been properly entered and prosecuted against a nonresident defendant having property in this State, except that no order for or publication of the summons or personal service has been made, a bond given by defendant in discharge of the writ is a voluntary submission of defendant’s cause to the jurisdiction of the court, our statutes, Revisal, secs. 774 and 775, requiring that such bond shall only be received after a general appearance entered, etc..

. Appeal by defendants from Ferguson, J., at April Term, 1915, of HERTFORD.

Civil action beard on motion to discharge an attachment and dismiss the action.

On the hearing, it was made to appear that plaintiff, having a claim against defendants for wrongful injury to his property, instituted an action by issuing a summons against them, returnable to February term of said court, 1915; that on affidavit duly made, averring validity of claim, that defendants were all nonresidents and that they had property within the State, etc., a warrant of attachment was duly issued, returnable to said February term, and, acting under said warrant, the sheriff levied same on lot of personal and real property belonging to defendants and made return thereof in proper form to the court; that after the institution of said suit and warrant and the levy thereof, towit, on 7 December, 1914, defendants gave bond in discharge of the attachment, as required by the statute. At February Term, 1915, the complaint having been duly filed, but no summons having been served on defendants or either of them, and no publication having been made or order therefor obtained, defendants, by their counsel, claiming to make a special appearance, moved to discharge the attachment and dismiss the action, on the ground that this issuing and the summons had not been properly followed by service of summons on defendants, 'either personal or by publication. The court, being of opinion that the giving of the bond was equivalent to personal appearance of defendant and constituted a waiver of the defects suggested, denied the motion, and defendants, having duly excepted, appealed.

Wmb-orne & Winborne for plaintiff.

F. T. Snipes, D. 0. Barnes for defendants.

Hoke, J.,

after stating the case: It was suggested on the argument that the defendants’ appeal might be premature, but our decisions are to the effect that the refusal to dismiss a warrant of attachment is an ap-pealable order, and, unless appealed from, tbe questions involved become res adjudicatei. Judd v. Mining Co., 120 N. C., 397; Sheldon v. Kivett, 110 N. C., 408; Roulhac v. Brown, 87 N. C., 1. On tbe principal question, while it is recognized, as contended by defendant, tbat wben an attachment has been issued it must be followed by service of tbe summons, personally or by publication (Finch v. Slater, 152 N. C., 165), we concur in tbe view of bis Honor, tbat where property has been levied on under tbe writ, a bond given by defendants in discharge of tbe attachment as provided by tbe statute will be considered equivalent to a personal appearance in tbe action and a waiver of tbe requirement for further service of the summons. It amounts to a voluntary submission of defendant’s cause to tbe jurisdiction of tbe court. This is stated for law in Drake on Attachments, sec. 332; and in Shinn on Attachments, sec. 288, tbe author says tbat it has been so held in courts where tbe question bad been presented. Tbe cases referred to by these authors are in full support of their statements. Blyler v. Kline, 64 Pa. St., 130; Richard v. Mooney, 39 Miss., 357; Cheatam v. Morrison, 37 S. C., 187. While this ruling may be departed from or modified in some jurisdictions, owing to varying provisions of their statutes controlling tbe subject, tbe Legislature in this State, Revisal, secs. 774 and 775, clearly contemplates tbat a bond given by defendant in discharge of tbe writ shall only be received after a general appearance entered. Tbe very form of tbe bond given by defendant and sureties pursuant to our statute would seem to justify such a position, tbe instrument signed by defendants and their sureties stipulating that if tbe property levied on be delivered to defendants they will return tbe property, “provided said plaintiffs recover judgment in tbe action,” and pay all costs awarded against them, and in default thereof, will pay to plaintiffs tbe value of said property and all costs and damages tbat may be awarded against them in tbe action.

We find no error in bis Honor’s ruling, and tbe judgment below is

Affirmed.