Citizens Bank & Trust Co. v. McCoin, 206 N.C. 272 (1934)

March 21, 1934 · Supreme Court of North Carolina

206 N.C. 272

CITIZENS BANK AND TRUST COMPANY v. R. S. McCOIN and MRS. R. S. McCOIN, Defendants, and I. B. WATKINS, R. B. CARTER, M. C. PEARCE, and P. A. SMITH, Garnishees.

(Filed 21 March, 1934.)

1. Process B c — Evidence held sufficient to support finding that defendant is nonresident for purpose of service and attachment by publication.

Evidence that a resident of this State had left this State and gone to another state, and that since said date his whereabouts had remained unknown to his business associates, relatives and friends in this State, without evidence that he had ever returned to this State, or intended to do so, or that he is dead, is held sufficient to support a finding that he is a nonresident for the purpose of service of summons and warrant of attachment against him by publication.

2. Garnishment D c—

Where the Superior Court has jurisdiction of both the cause of action and the principal defendant, the garnishees cannot attack the validity of the garnishment proceedings against them on other grounds.

Appeal by tbe garnishees from Parker, J., at November Special Term, 1933, of Yakce.

Affirmed.

Tbis is an action to recover on certain notes aggregating tbe sum of $11,050. Tbe notes sued on were executed by tbe defendant R. S. Mc-Coin, and are payable to tbe plaintiff. All of said notes are past due.

Tbe summons in tbis action and a warrant of attacbment were issued on 30 March, 1933. Tbe summons was duly returned by tbe sheriff of Yance County, endorsed “After due and diligent search, R. S. McCoin cannot be found in Yance County.” Thereafter, both tbe summons and tbe warrant of attacbment were duly served on tbe defendant R. S. McCoin by publication, .pursuant to an order of tbe clerk of tbe Superior Court of Yance County, made on findings by said clerk that R. S. McCoin is a nonresident of tbe State of North Carolina, and cannot, after due diligence, be found within said State, and that plaintiff has a good cause of action against tbe said R. S. McCoin, on tbe notes sued on.

On 1 May, 1933, tbe sheriff of Yance County, under the warrant of attacbment issued to him by tbe clerk of tbe Superior Court of said county, levied on tbe indebtedness of I. B. Watkins, R. B. Carter, M. C. Pearce, and P. A. Smith to tbe defendant R. S. McCoin, and on 2 October, 1933, tbe said garnishees were ordered by tbe judge of tbe Superior Court of Yance County, to appear before tbe said judge, at tbe courthouse in said county, on 8 November, 1933, and there and then answer, each on bis oath, as to tbe amount of bis indebtedness to tbe defendant, R. S. McCoin.

At November Special Term, 1933, of tbe Superior Court of Yance County, judgment was rendered in tbe action, that plaintiff recover of tbe defendant, R. S. McCoin, the sum of $11,050, with interest and costs. It was ordered in said judgment that tbe sheriff of Y anee County sell tbe property, real and personal, on which be bad levied under tbe warrant of attacbment, and apply tbe proceeds of said sale as payments on said judgment.

On 8 November, 1933, tbe garnishees appeared pursuant to tbe order of tbe judge, and filed pleas in abatement, challenging tbe validity of tbe warrant of attacbment in tbis action.

From judgment overruling their pleas in abatement, and denying their motion that tbe attacbment proceeding in tbis action be dismissed, tbe garnishees appealed to tbe Supreme Court.

Perry & Xittrell and A. A. Bunn for plaintiff.

M. O. Pearce, B. B. Garter and I. B. Watkins for garnishees.

CONNOR, J.

Judge Parker’s finding that tbe attacbment proceedings in tbis action against tbe principal defendant R. S. McCoin are valid in all respects, is supported by evidence appearing in the case on appeal as certified to this Court.

The evidence shows that B. S. McCoin, for many years a resident of this State, left his home in Henderson, N. C., on 22 December, 1932, and went to the State of Virginia. Since that date, his whereabouts have been and are unknown-to his business associates, relatives, and friends in this State. There is no evidence tending to show that since he left his home in Henderson, he has at any time returned to this State, or that he has any intention to do so. There is no evidence tending to show that he is dead. This evidence is sufficient to support the finding by Judge Parker that the defendant B. S. McCoin is now and was at the date of the commencement of this action a nonresident of this State. Brann v. Hanes, 194 N. C., 571, 140 S. E., 292.

As the Superior Court of Vance County has jurisdiction of both the cause of action alleged in the complaint, and the principal defendant, the garnishees cannot attack the validity of the garnishment proceedings against them on other grounds. 28 C. J., p. 276, 12 B. C. L., p. 830. The judgment is

Affirmed.