Morganton Manufacturing & Trading Co. v. Foy-Seawell Lumber Co., 178 N.C. 571 (1919)

Dec. 3, 1919 · Supreme Court of North Carolina

178 N.C. 571

MORGANTON MANUFACTURING AND TRADING COMPANY v. FOY-SEAWELL LUMBER COMPANY.

(Filed 3 December, 1919.)

1. Appeal and Error — Objections and Exceptions — Findings of Fact — Evidence.

Findings of fact by tbe judge, made with the consent of the parties, have the force and effect of a verdict, and are not reviewable on appeal except for the want of sufficient legal evidence to support them.

2. Appeal and Error — Signing Judgment — Formal Exceptions.

Formal exceptions to the act of the judge in signing the judgment ap-nealed from present no questions of law for review on appeal.

.3. Courts — Orders—Control of Funds — Banks and Banking — Commissions— Adverse Claims.

Where the parties to a proceeding in attachment agree that the property be sold, and the proceeds deposited in a certain bank to await the-final outcome of the action, and the bank so receives them and sets up an adverse claim, it is sufficient to sustain an order of court on the bank to-I)ay the money to another commissioner appointed by the court.

Appeal by respondent from Long, J., at tbe December Term, 1918, of Btjbke.

This is an appeal from a judgment rendered in tbe above entitled action against tbe respondent, tbe Battery Park Bank of Asbeville,. N. C., on tbe motion of tbe plaintiff, beard out of tbe district at States-ville, N. C., by consent, upon a rule to sbow cause wby said respondent should not be required to file statement and pay to tbe commissioner appointed in this action all such funds as bad been deposited with it by tbe defendant, or come into its bands since 10 May, 1915, from tbe proceeds of sales of tbe property attached in this action.

Tbe said judgment was rendered upon a consideration of tbe proceedings in this action as appears of record, and on file herein, and tbe affidavits and proofs offered on said bearing before Judge B. F. Long, as. follows:

(1) This action was begun in tbe Superior Court of Burke County on 26 April, 1915, by summons issued out of tbe Superior Court of Burke County, and an attachment therein levied upon tbe property of tbe defendant; that a part of tbe said property consisted of a carload of lumber, which was levied on under said attachment at Hickory, in Catawba County, while in tbe act of being shipped out of tbe State to M. F. Ber-glass & Company of New York, to whom it bad been consigned by the defendant.

(2) That shortly after this action was instituted, to wit, on 10 May, 1915, an agreement was entered into between tbe plaintiff, Morganton Manufacturing & Trading Company, and the defendant, Eoy-Seawell Lumber Company, and filed and made a part of the record whereby it was stipulated that the defendant might sell and dispose of the Berglass ■car of lumber and other property attached and deposit the proceeds of such sale or sales with the Battery Park Bank of Asheville, N. C., to be held by said bank pending the outcome of said action; the said agreement reciting, among other things, “that, whereas, a car of lumber has been loaded and billed to M. P. Berglass & Company, of Brooklyn, N. Y., and whereas, the draft covering said shipment has been assigned to the Battery Park Bank of Asheville, N. C., for collection, and whereas, a portion of the balance of said lumber, now at Morganton, N. C., has been sold by the defendant: It is, therefore, agreed that the said car of lumber consigned and billed to the said M. P. Berglass Company, of Brooklyn, N. Y., be released from said attachment, and that the proceeds ■of the sale of said car of lumber be deposited in and held by the Battery Park Bank of Asheville, N. 0., pending the outcome or settlement of ■said suit, subject to the rights of both plaintiff and defendant, and without prejudice.”

(3) That after said agreement had been filed and made a part of the record, as aforesaid, to wit, at the October Term, 1915, of the Superior Court of Burke County, the said Battery Park Bank came into court by ■and through its attorneys, Lee & Ford, and intervened and made itself a party to this action by filing affidavit in which it set up title under mortgage to a part of the property attached in this action, including a part of that contained in the Berglass car, which was shipped in the name of the defendant to New York and sold under said agreement.

His Honor made the following findings, among others:

“Fourth. I find that after the making of said agreement, to wit, on the hearing before the referee, the said bank set up title under its said mortgage to a part of the lumber contained in the Berglass car, and to certain other portions of the property attached in this action. The records and admissions show that the same attorneys for the defendant company also represented the bank during the litigation, and now A. B. Eoy himself admits that under the agreement of plaintiff and defendant, signed by the attorneys on both sides, he deposited the proceeds of the car shipped to the French Broad Lumber Company with the Battery Park Bank.

“Fifth. I find that the value of the property removed and embraced in the agreement is apparently as much as $1,650 in value, and that the defendant, Foy Seawell Lumber Company, was at the time of said agreement insolvent, and this was known by the said bank at the times the defendant made deposits with it after 10 May, 1915.

“Sixth. I find that after tbe making of said agreement tbe defendant,. Foy-Seawell Lumber Company, from 11 May, 1915, to 27 April, 1917,. bad on deposit witb tbe said bank tbe sum of $2,229.91, and that said defendant was allowed to cbeck out all of said deposits in excess of $30.94 — -but to whom tbe payments of $2,198.97 were made is not shown-in bank’s answer. Tbe balance of $30.94 was paid to Commissioner-Halliburton.”

An order was then made upon tbe findings directing tbe bank to pay to tbe commissioner tbe money it bad received under tbe agreement, and tbe bank excepted and appealed, assigning tbe following errors:

For that tbe court erred in its finding of facts as set out in respondent’s first exception, which is as follows:

“1. His Honor, Judge Long, in bis judgment, in tbe latter part of' finding of fact No. 2, finds, among other things, Tbe bank bolding tbe bill of lading for said car of lumber’ (stenographer’s notes, p. 135), to which> finding of fact tbe respondent, Battery Park Bank, in apt time objected: and excepted.

“2. I find that after said bank was made a party to this action, to wit,, at tbe August Term, 1916, of Burke Superior Court, an order was made-in this action reciting that tbe car of lumber attached herein and billed, to Bergiass & Company bad been released witb tbe agreement that the-proceeds thereof were to be placed in tbe bands of a trustee to await the-determination of this action. Tbe judgment of Judge Webb, December-Term, 1918, is made a part of this finding.

“3. I find that tbe value of tbe property removed and embraced in the-agreement is apparently as much as $1,650 in value, and that tbe defendant, Foy-Seawell Lumber Company, was at tbe time of said agreement insolvent, and this was known by tbe said bank at tbe times tbe defendant made deposits witb it after 10 May, 1915.

“4. His Honor, Judge Long, signed tbe judgment appearing in record,, to which tbe Battery Park Bank in apt time objected, and excepted.”

Avery & 'Ervin for plaintiff.

Lee & Ford for defendant.

AlleN, J.

It will be noted that tbe first, second, and third assignments of error are based on exceptions to findings of- fact of bis Honor,, and not on tbe ground there is no evidence to support them, and, “A jury trial being waived, tbe findings of fact by tbe judge have tbe force- and effect of a verdict, and are conclusive upon us, in tbe absence of an exception that there is no evidence to support them.” Caldwell County v. George, 176 N. C., 608.

The fourth assignment, if it is merely to the act of signing the judgment, is formal, and “presents no question of law for review” (Church v. Dawson, 157 N. C., 566), and, if treated as an exception to the judgment, it presents the single question whether the facts found or admitted are sufficient to support the judgment (Ullery v. Guthrie, 148 N. C., 419), and we are of opinion that the findings that the property attached was sold and the proceeds deposited in bank by agreement of the parties, which was made a part of the record, and that the bank received the money under the agreement, are ample to justify an order requiring the bank, which had undertaken to set up an adverse claim, to pay the money "to another commissioner appointed by the court.

“Every court out of which process is issued has general superintending power over moneys collected thereon.” 7 E. 0. L., 1034.

Affirmed.