North Carolina Bessemer Co. v. Piedmont Hardware Co., 171 N.C. 728 (1916)

May 24, 1916 · Supreme Court of North Carolina

171 N.C. 728

NORTH CAROLINA BESSEMER COMPANY v. PIEDMONT HARDWARE COMPANY et al.

(Filed 24 May, 1916.)

1. Appeal and Error — Order at Chambers — Objections and Exceptions.

An appeal from the order of a judge rendered in a pending action at chambers, and the sole ground of the appeal, does not require the service of a case on appeal by the appellant, and a motion to dismiss in the Supreme Court for that reason will be denied.

2. Same — “Skeleton Case” — Order to Copy Record — Case Complete.

Where an appeal is taken from an order made in a pending action by the judge at chambers, he has the right to direct the clerk what to copy from his record in the transcriut on appeal; and when this has been done, and the record appears to be in full, the appellant’s case will not be dismissed on the ground that a “skeleton case” on appeal has been served.

8. Receivers — Sales—Insolvent Corporations — Issues of Fact — Trial by Jury —Adjudication at Chambers — Appeal and Error.

Where receivers for an insolvent corporation have been appointed and the corporate property ordered to be sold by them and a party enters an interplea claiming prior lien upon certain of its standing timber, upon which issue has been joined, the question presented is for the determination of the jury, unless such trial has been duly waived; and it is reversible error for the judge, at chambers, to adjudicate the fact of lien and the amount; but the order for the receivers to sell will stand, it being their duty to do so to the best advantage, and retain the proceeds subject to the further orders of the court.

Civil actioN pending in tbe Superior Court of McDowell County, beard at chambers at Marion, 3 February, 1916, by Justice, J. From tbe order made tbe petitioners William Morrison and N. B. Mills and tbe defendant tbe Piedmont Hardware Company appealed.

■ W. D. Turner and Dorman Thompson for appellants.

Hudgins & Watson, Guthrie & Guthrie, Pless & Winborne for appel-lees.

BkowN, J.

Tbe appellees move to dismiss tbe appeal upon tbe ground tbat only a “skeleton case on appeal” was served, and rely upon tbe ruling of this Court in Sloan v. Assurance Soc., 169 N. C., 257. In tbat case tbe appellee objected to tbe case on appeal as not being in tbe form required by law. Revisal, 591. The case as served was sent to this Court. Without such objection, not even by consent, would this Court act upon such a statement of a case as is shown in tbe record of tbe Sloan case. That case was tried by jury, and nothing was sent up to us except a skeleton with blanks tbat bad never been filled in. This case presents an appeal from an order of tbe judge at chambers. Tbat alone is tbe basis of the appeal, and it is set out in full. No case on appeal was necessary. Comrs. v. Scales, ante, 523. Tbat with tbe pleadings and orders theretofore made constitute tbe entire record. In stating tbe case the judge bad tbe right to direct tbe clerk what orders to copy in tbe transcript for this Court. They have been copied and are before us. W.e find tbe record to be complete in every particular. Tbe motion is denied.

It appears from tbe record tbat tbe plaintiff, the Bessemer Company, brought this action to recover an amount alleged to be due said Bessemer Company, and also asking for tbe appointment of a receiver for said Piedmont Hardwood Company. Tbe motion for a receiver was beard on 12 July, 1915, by Harding, J., at Marion, and after bearing said motion his Honor appointed W. E. Webb and W. II. M. Gilkey receivers. This order provided tbat service should be made on stockholders, creditors, dealers and others in tbe manner and way provided by statute. At September Term, 1915, of tbe Superior Court of McDowell County order was made tbat all parties bolding claims against tbe Piedmont Hardwood.Company should make proof of sucb claims to tbe receivers on or before 1 January, 1916, and tbat tbe receivers should give notice of this order.

Thereafter a controversy having arisen as to tbe right of tbe receivers to sell tbe uncut timber standing on tbe lands of tbe North Carolina Bessemer Company, and tbe receiver, Gilkey, having refused either to sell said timber op to ask tbe court for instructions, certain creditors of tbe Hardwood Company moved before Judge Adams for an order to Gilkey to show cause why be should not sell tbe timber.

In bis order of 19 January, 1916, Judge Adams recites tbat Morrison and Mills are creditors of tbe Hardwood Company for tbe purpose of tbat motion, and directed tbat tbe receivers show cause before Justice, J., at Marion why they shall not carry out tbe orders heretofore made relative to tbe sale of standing timber. This motion was beard before Judge Justice on 3 February.

At this bearing Receiver Gilkey answered and tbe Bessemer Company, plaintiff, made response.

M. L. Good, who bad heretofore made himself a party plaintiff in tbe suit, filed an interplea, claiming a lien on tbe manufactured lumber in tbe possession of tbe receivers. To this interplea tbe Hardwood Company replied, denying tbe material allegations upon which tbe claim of lien is based. Upon this bearing tbe judge made a decree to which appellants excepted. Tbe parts of tbe decree to which apj>ellants except are as follows:

1. Tbat tbe Piedmont Hardwood Company is indebted to tbe plaintiff, tbe Bessemer Company, in tbe sum of $11,216 and interest, being balance due for purchase price on standing timber, and tbat said plaintiff has a vendor’s lien on tbe timber for said sum.

2. Tbe court adjudged tbat tbe Hardwood Company was largely indebted to interpleader Good and tbat be has a first lien on tbe manufactured lumber in bands of tbe receivers, and directed tbat receivers pay to him on account tbe sum of $5,000.

"We are of opinion tbat tbe exceptions are well taken. At this stage of tbe case tbe judge erred in adjudicating tbe debts claimed by tbe Bessemer Company and by Good, and in directing tbe payment of $5,000 to tbe latter. Tbe allegations of tbe Bessemer Company and of inter-pleader Good were denied. Upon tbe issues raised, a jury trial must be bad, unless specifically waived. Tbe judge at chambers bad no power to make final adjudication upon sucb issues. Tbe order is set aside except so much as requires tbe receivers to sell tbe standing timber. It is their duty to do so to best advantage and to hold the proceeds subject to the further order of the Superior Court.

The costs of this Court are adjudged against the Bessemer Company and M. L. Good.

Error.