Alexander v. Taylor, 62 N.C. 36, 1 Phil. Eq. 36 (1866)

June 1866 · Supreme Court of North Carolina

62 N.C. 36, 1 Phil. Eq. 36

VIOLET W. ALEXANDER v. MOSES B. TAYLOR and others.

A bill seeking an attachment, on account of a single claim, is not multifarious because it prays that such attachment issue against property in the hands of various persons, or because it seeks from such persons an account -of their respectivo dealings with the debtor.

Where, in such a bill, process (but not relief) had also been prayed for against the executors of the surety to the debt, and a judgment pro confesso had been taken against them: Seid, that, although the hill would have been dismissed as to them if they had demurred, no other defendants could complain of their misjoinder.

The debtor in an attachment suit in equity has no status in court until he has appeared and replevied, in accordance with the 25th section of Rev. Code, ch. 7. An attachment in equity will lie against the principal, even though the remedy at law against his surety has not been exhausted.

Original Bill, attaching the estate -of a non-resident debtor, filed to Spring Term, 1866, of the Court of Equity for Mecklenburg county. A.t the same term the cause was argued before Mitchell,-J., upan-a demurrer.

The bill showed that the defendant, Taylor, who had left the State and was then residing in Pennsylvania, was indebted in a considerable amount to the •,complainant; that one Steele was surety to the debt, and was then dead, leaving one White as executor, who was also dead, leaving the defendants, Sarah J. White and John M. White his executors ; also, that Taylor, before leaving this State, had entered into a partnership for mercantile purposes with the defendants, J. M. Sanders and J. J. Blackwood, and retains a' considerable interest therein ; and that he is a stockholder in the Charlotte and South-Carolina Railroad Company. The bill also showed that the complainant had issued an attachment at law against certain real estate, which was all the property, subject to an attachment at law, that Taylor owned in the State, and that was wholly insufficient to satisfy the claim in question.

The bill prayed for an attachment against the stock, and the interest in the partnership, and for an account against the partners, also for other relief; and for that purpose prayed for subpoenas against Taylor, S. J. White and J. M, White, as executors of A. C- Steele, John J. Blackwood, J. H. Sanders and the Charlotte and South-Carolina Railroad Company.

Publication was made as to Taylor, and judgment pro confesso taken as to the R. R. Company and the executors.

A demurrer was filed by Moses B. Táylor, John J. Black-wood and James H. Sanders, showing as cause: “ 1st, that the said bill is bad for multifariousnoss, in that it contains two distinct grounds of suit, wholly distinct and separate from each other; and in that it makes persons party defendants, who are unconnected with a large part of the subject matter ;

2d, that the said bill is bad for the misjoinder of Steele’s executors.”

After the demurrer had been argued, his Honor overruled the same, and ordered that the defendants who demurred should answer. From this order they appealed to this court.

Wilson, for tbe complainant.

Doicd, for tbe defendants.

Pearson, C. J.

This is an attachment by bill in equity under the statute, Rev. Code, ch. 7, to subject the interest of Moses B. Taylor, in the firm of J. M. Sanders & Co., and his interest as a stockholder in the Charlotte and South-Carolina Railroad Company, to the satisfaction of the complainant’s debt, on the ground that Taylor is a non-resident, and has not “enough estate” on which an attachment at law could be levied to satisfy the debt.

A joint demurrer is filed by Moses B. Taylor, John J. Blackwood and James M. Sanders. The statute, sec. 25, authorizes the debtor at any time before final decree to replevy, by executing a bond, &c., and “thereupon he shall be permitted to plead, answer or demur to the billj” &c. Taylor has not executed a bond, and therefore has no stains in court, and, if the demurrer stood in his name only, the court would order it to be stricken from the file; but, as Blackwood and Sanders join him in the demurrer, his name will be treated as surplusage, and the demurrer considered as made on the part of Blackwood and Sanders only.

The bill makes out a case under the statute, and is not defective in substance. The suggestion, that the complainant cannot proceed by attachment in equity against Taylor, because Steele is a surety to his debt, and it is not averred that the remedy at law against him has been exhasted, has nothing to support it. It would be strange, if a creditor were required to exhaust his remedy against the surety before be is at liberty to proceed against the principal!

The demurrer sets out two special grounds : 1st, the bill is multifarious, in that it contains two distinct grounds of suit, and in that it makes “parties defendants, persons who are unconnected with a large part of the subject matter.” It is true that Taylor’s interest in the firm of danders & !0n., and Ills interest in the Railroad are two distinct things, and that the members of the firm and of the Railroad Com.pany are distinct persons ; but it is not true that the bill ^contains two distinct grounds of suit. The debt due by Taylor, a non-resident, is the ground of suit, and there is no reason why the complainant may not, in the same bill, seek to have it satisfied out of two or more subjects, in which the debtor has an interest.

2d, the misjoinder of the executors of Steele.

No decree is asked against the executors, and it was not necessary to make them parties. If they had demurred, the bill would have been dismissed as to them, but 'the fact of making them parties nowise affects the rights of Blackwood and Sanders, and consequently presents no ground of demurrer for them. Let the decretal order be affirmed. This opinion will be certified.

Per Curiam.

Decretal order affirmed.