McLean v. McDaniel, 44 N.C. 203, 1 Busb. 203 (1853)

June 1853 · Supreme Court of North Carolina

44 N.C. 203, 1 Busb. 203

ALLEN McLEAN vs. PENELOPE McDANIEL.

The parties to an issue joined upon an interplea in attachment, (under the Act of Assembly, ch. 6, sec. 7, Rev Statutes,) have each the same right of appeal (under Sec. 14,) to the Superior Court, as in actions commenced in the ordinary way.

This was originally a suit by attachment, at the instance of the plaintiff against Bluford McDaniel; and the attachment having been levied on a negro slave, and returned to the Court of Pleas and quarter Sessions of Bladen county, the defendant Penelope McDaniel interpleaded, claiming the said slave as hers. An issue was accordingly made up and submitted to the jury, who found that the said slave was the property of the defendant, and judgment was rendered accordingly ; from which finding and judgment the plaintiff prayed an appeal to the Superior Court, which was allowed.

On the trial, before his Honor Judge Dick, at Spring Term, 1853, of Bladen Superior Court, the defendant, by her counsel, moved to dismiss the said appeal; and his Honor being of opinion that the finding of the jury in the County Court was final, according to the Act of Assembly, gave judgment dismissing the appeal; from which judgment the plaintiff prayed for and obtained an appeal to the Supreme Court.

Strange, for the plaintiff.

D. Reid ¿y Banks, for the defendant.

Pearson, J.

When property is attached under a proceeding against an absent debtor, and a third person lays claim to it, a summary mode of trying the right of property is provided by statute, and it is enacted, “ the verdict of the jury in such case shall be conclusive as to the parties then in Court, and the Court shall give judgment accordingly.” Rev. Stat. ch. 6, sec. 14.

His Honor was of opinion that the effect of this enactment tvas to deprive both parties of the right of appeal. There is error. No reason can be suggested why the general right of appeal should be taken away in such cases ; and it is clear that the clause under consideration was introduced from abundance of caution, so as to leave no room for a doubt that this summary and collateral mode of trying the right of property, should have the same conclusive effect as to the parties then in Court, as if the question had been presented upon an issue joined in an action commenced in the usual way. And it may have been introduced for the further purpose of declaring expressly that the effect of the judgment should be confined to the parties then in Court, arid not be extended so as to include the absent debtor. As the Act directed a mode of proceeding unknown to the common law, it was deemed proper to say who were to be bound by it; but in doing so, there is not the slightest intimation of an intention to take away the right of appeal.

The judgment must be reversed, and this opinion will be certified.

Per Curiam. Judgment reversed.