Meekins v. Coastal Game Preserves, 212 N.C. 96 (1937)

Sept. 22, 1937 · Supreme Court of North Carolina

212 N.C. 96

THEODORE S. MEEKINS v. COASTAL GAME PRESERVES, CAROLINA DEVELOPMENT COMPANY, LOUVAL REALTY COMPANY, INC., HAROLD C. LEWIS, and ALBERT A. LEWIS.

(Filed 22 September, 1937.)

1. Pleadings § 21—

Upon appeal from tbe clerk’s order denying a motion to vacate plaintiff's attachment, tbe Superior Court, in denying defendants’ motion, bas ample power to allow plaintiff to amend tbe complaint and affidavits.

2. Appeal and Error § 2—

An appeal from an order denying defendants’ motion to vacate an attachment is premature where tbe trial court allows plaintiff to amend bis complaint and affidavits, since what amendments, if any, will be made and their effect upon defendants’ motion cannot be determined.

Appeal from an order of Williams, J., at May Term, 1931, of Dare.

Remanded.

Action by plaintiff creditor to set aside certain alleged fraudulent conveyances executed by and between tbe defendants, wbo are nonresidents. At tbe time of issuance of summons, attachment was issued and levied by tbe sheriff on tbe interests of tbe defendants in described lands. Service of summons and warrant of attachment was bad by publication. Defendants entered special appearance and moved to vacate tbe attachment. This was denied by tbe clerk and upon appeal the judge of the Superior Court made an order that tbe motion be denied and that tbe plaintiff be allowed thirty days within which to file amendment to complaint and affidavits.

From this order defendants appealed to tbe Supreme Court.

M. B. Simpson and John H. Hall for plaintiff, appellee.

Worth & Horner for defendants, appellants.

Per Curiam.

Tbe order appealed from granted tbe plaintiff thirty days within which to amend tbe complaint and affidavits upon which tbe attachment was based. Tbe power of tbe court to permit amendments of pleadings and process is ample (Rushing v. Ashcraft, 211 N. C., 627). Hence, tbe appeal before tbe time within which amendments were permitted to be filed was premature. What amendments, if any, will be made and their effect upon defendants’ motion cannot now be properly determined. Tbe cause is remanded to the Superior Court for’further proceedings, the defendants’ exception being preserved. Thomas v. Carteret County, 180 N. C., 109; Farr v. Lumber Co., 182 N. C., 725.

Remanded.