North Carolina Mutual Insurance v. Hicks, 48 N.C. 58, 3 Jones 58 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 58, 3 Jones 58

NORTH CAROLINA MUTUAL INSURANCE COMRANY vs. JAMES A. HICKS.

A warrant and judgment against J. E. J., President of a corporation, and an execution conforming thereto, do not authorise an officer to take the property of the corporation of which J. E. J. was the president.

This was an action of trover, tried before his Honor Judge Caldwell, at the last Fall Term of Alamance.

The plaintiff claimed the property in question, (two mules,) as assignee, in trust to secure the debts of the Manteo Manufacturing Company, by a deed executed on 3d of November, 1855. The defendant claimed by virtue of an execution sale,, and insisted that plaintiff’s deed in trust was not registered until after the levy of his execution; and that was one of the questions discussed by the counsel; but as the decision of the court proceeds upon the irregularity of the defendant’s proceedings, tire, facts in relation to the registration need not be stated.

The sale of the property to the defendant was under a judgment rendered by a justice of the peace of Wake county, in his favor, and an execution issued thereon. The warrant was “to take the body of Jamos.F. Jordan, President of the Manteo Manufacturing Company, to answer the complaint of Jas. A. Hicks, for the non-payment of the sum of ninety dollars, due, &c. 3d Nov. 1855.” On tlie same day, judgment was rendered for the sum of $62.60, in favor of the plaintiff, and endorsed on the warrant. An execution is also made out on the back of the warrant, and signed by the magistrate, as follows : “ The officer is commanded to execute, and sell, so much of the goods and chattels of the defendant as will satisfy this judgment.”

The property in question was levied on and sold under this execution, and the money paid to defendant.

R is admitted that the deed in trust was duly registered before this suit was brought.

The only question in the case is, whether the officer was justified in seizing the property of the Manteo Manufacturing Company, under this proceeding.

The foregoing facts were put into the form of a case agreed, and submitted to his Honor below, with a further agreement, that in case he should be in favor of the defendant on the questions submitted, he should enter a nonsuit against plaintiff; otherwise a judgment was to be entered for the plaintiff, for the sum of $230.

Ilis Honor, pro forma, gave judgment for the defendant, and the plaintiff appealed.

Fpwle and Moore, for plaintiff.

Winston, Sr., for defendant.

Nash, C. J.

The property in question, had belonged to the “ Manteo Manufacturing Company,” ■ aiid by it was conveyed, by deed of trust, to the plaintiff, to secure a debt due the plaintiff. The Manteo Company was also indebted to the defendant, who caused a warrant to be issued by a single magistrate, against James F. Jordan, who, in it, is called the “President of the Manteo Manufacturing Company.” This warrant commanded the officer to tales the tody of James F. Jordan, &c., and judgment was rendered in favor of the plaintiff. The execution directed the officer to levy it on the goods and chattels, lands and tenements of the defendant. Several questions were raised on the argument here, as to the priority of the lien between the execution, and the deed of trust under which the plaintiff claims, embracing the registration'of the latter. From the view which has been taken here, it is not deemed proper to express any opinion upon them.

The warrant directed the officer to arrest the body of James F. Jordan, to answer the complaint of Jameff A. Hicks, for the non-payment of the sum of ninety dollars, due by account. The warrant, then, was against James F. Jordan, individually, and the judgment was for the plaintiff. The execution was in conformity with the warrant and judgment, and was levied, not on the property of James F. Jordan, but on that of the Manteo Manufacturing Company, or rather, on that of the plaintiff in the hands of their trustee. The debt upon which the proceedings were had, was, no doubt, due from the Manteo Company, and the object was to subject their property to its payment; but the parties, instead of proceeding under the Act of the Assembly, have proceeded against the presiding officer of the Company, to make him personally responsible. It is possible he may have made himself personally responsible. But the Manteo Company surely, could not be made responsible under these proceedings. The Manteo Manufacturing Company is a corporation, and the Act of 1836, ch. 26, in the 2d and 3d sections, points out the mode by which corporations are to be proceeded against. The 2d section provides: “that in all actions or suits which may be instituted against any corporation, it shall be sufficient to issue a summons to the sheriff, or other proper officer, reciting the cause of action, and sximmoning the said corporation to appear and answer the same, &c., which summons shall be returnable in like manner, and subject to the same rules and regulations, as other original process.”

The 3d section provides how this summons shall be served, to wit: on the president, &c., “ shall be deemed sufficient service”, and “ the return of such service, &c., shall be sufficient, and on the return of such summons, &c., the same proceeding to a final judgment shall be had against such corporation, &c.”

This, then, is the mode established by the Legislature, as that by which a creditor of a corporation is to proceed to recover a claim against it. It is manifest, in the case before us, that it has not been pursued. The Manteo Company was no parly to the proceedings, and had no appearance in court. Their property, therefore, could not be taken to satisfy the execution. The case agreed states “if the Court should be of opinion that the officer was justified in levying the execution on the property of the Manteo Manufacturing Company, then, judgment of nonsuit should be entered; and if .the Court should be of a contrary opinion, then judgment is to be entered for the plaintiff for $230. Ilis Honor, being of opinion that the officer was justified, gave judgment of nonsuit against the plaintiff. In this there is error. The j udgment is reversed, and a judgment is given for the plaintiff for $230. See Story on agency.

Per Curiam.

Judgment reversed.