Cotton Mills v. Weil.

40 S.E. 218, 129 N.C. 452, 1901 N.C. LEXIS 98

• Court: Supreme Court of North Carolina
• Decided: December 23, 1901
• Status: Published

Opinion

CooK, J.

Weil Brothers shipped to plaintiff fifty bales of cotton, and drew a sight draft upon plaintiff for tbe value of the cotton, with bill of lading attached, in favor of appellant, Bant of Opelika.

Weil Brothers and the Bank of Opelika were non-residents of this State, being residents of the State of Alabama, and plaintiff resided at Morganton, in this State. Upon arrival of the cotton in Morganton, and while it was in the possession of the Southern Railway Company, plaintiff instituted an action against Weil Brothers, wherein it claimed that they were liable to it in the sum of $500 on account of damages resulting from a former transaction in the purchase of two hundred bales of cotton, purchased from them, and sued out an attachment against said 50 bales of cotton and caused it to be levied upon the same while in possession of the Southern Railway Company, and caused the summons and warrant of attachment to be served upon said Weil Brothers by publication (as they could not be personally served), wherein they were notified that the amount claimed was $500.

Weil Brothers entered a special appearance before the Clerk of the Superior Court, and moved to dismiss the attachment and set aside the order of publication for irregularities or defects appearing in the affidavit in the proceedings, which motion was overruled by the Clerk, and defendants appealed to the Superior Court.

The Bank of Opelika intervened in the action, claiming title to the cotton by reason of the sight draft with the bill of lading attached. Plaintiff filed its complaint, alleging damage to the amount of $900, and defendant bank (ínter-venar) filed its answer, setting up title in itself. Upon reaching the case for trial, Weil Brothers again entered a special appearance, and moved to dismiss the action and vacate the attachment proceedings, which motion was overruled, and they decline to enter a general appearance, and did not further defend said action.

Intervenor bank asked a separate trial as to the bank’s title, which was refused by tbe Court, and it excepted. Tbis was tbe first exception.

Upon tbe trial, tbe Court submitted tbe following issues to tbe jury:

“1. Wbat amount is tbe plaintiff entitled to recover of defendant firm of Weil Brothers ?

“2. Was tbe cotton attached by plaintiff tbe property of tbe Bank of Opelika, intervenor, when attached ?”

His Honor instructed tbe jury that tbe burden was upon tbe intervenor to establish title to tbe property, and that, if they believed tbe evidence, tbe bank bad failed to establish title in itself, to which tbe bank excepted. This is the second exception.

Tbe jury, under tbe instructions of tbe Coma. ansAvered both issues in favor of tbe plaintiff; and, upon motion of in-tervenor for a new trial, tbe motion was denied and exception taken. Tbis Avas tbe third exception. Tbe bank appealed, Tbe jury assessed tbe plaintiff’s damages at $657.60. Thereupon tbe plaintiff moved for judgment for $657.66 upon tbe verdict, and bis Honor refused to render judgment for' that amount,'but did render judgment for $500, as calimed in tbe attachment proceedings and in the summons as published, to' which plaintiff excepted and appealed

So tbis case is beard upon tbe appeals of plaintiff and intervenor bank, upon their respective exceptions, and we sustain tbe rulings of bis Honor in both appeals.

Tbe service by publication gave the Court jurisdiction over the property attached (and not over tbe person) to tbe extent of its value, not exceeding tbe amount claimed in tbe publication. Tbe object of tbe publication is to inform tbe defendant of tbe amount claimed, and that bis prop srty within tbe jurisdiction is sought to be condemned to pay that amount. Being informed by tbe publication of tbe amount claimed,, and it being true, the defendant might content himself with the proceedings and allow that amount collected out of his property. For it is expressly required in section 352 of The Code that said publication (of the' warrant of attachment and summons) “shall state * * * the amount of the claims.” * * *

The intervenor’s excptions can not be sustained; (1) because it was interested in one issue only — “was the cotton attached by plaintiff its property when attached ?” — and that issue was submitted. So it was not its right to have a separate trial as to that, unless the Court, in the exercise of its discretion, should so order. Blair v. Puryear, 87 N. C., 101; Code, secs. 375 and 331.

(2) and (3) being considered together: Because Weil Brothers having failed to appear and answer, and judgment by default being taken against them for want of an answer, as to them the only issue was the quantum of damages. And the intervenor had no right to interfere in the action or remedy between plaintiff and defendant. It was none of its business. Bank v. Furniture Co., 120 N. C., 475.

The bank, being the intervenor and actor, the burden of proving its title to the property levied on was upon it to show the affirmative (Wallace v. Robeson, 100 N. C., 206), and if there was no evidence to sustain its title, it was the duty of the Court to so instruct the jury. And the evidence sent up in the record sustains his Honor in so ruling.

The evidence relied upon is that one of the members of the firm of Weil Brothers was a director of the bank, and the firm owed the bank for money advanced in buying cotton. When the shipment of fifty bales was made, Weil Brothers drew on the consignee, the plaintiff, the bill of lading attached to the draft, for the value of the cotton, in favor of the bank. The bank did not cash the draft, nor did it accept the same in settlement of Weil Brothers’ indebtedness, or any part thereof, but simply credited them with the amount of the draft (less discount charges for collection) “with the right on tbe part of tbe bank to charge it back to Weil Brothers in case tbe draft was returned not collected”; and tbe bank “sent tbe draft with bill of lading attached for collection to its representative at Baltimore,” with “collection” stamped on its face. When payment was refused by tbe drawee, and the draft returned, it was charged bach against Weil Brothers. No money passed, nor did Weil Brothers draw against tbe amount credited, • nor could tbe bank officers remember whether they returned tbe draft and bill of lading to Weii Brothers, after it was returned to them. Tbe bank intervened in this action upon tbe request of Weil Brothers for tbe benefit of Weil Brothers, who were stockholders in tbe bank. Now, then, it seems clear to us from the evidence of tbe intervenor that it did not pay anything of value for the draft with bill of lading attached, and did not become the owner of the same. Its possession was that of an agent to collect, and, when the draft was returned, the credit originally entered was cancelled by charging it back, thus placing the parties in the same position that they originally occupied; and Weil Brothers then had a right to demand and maintain an action against the bank for the bill of lading and return of its draft.

The principle herein involved is fully discussed and settled in Packing Co. v. Davis, 118 N. C., 548, and Boykin v. Bank, Ibid, 566.

There being no error, the judgment below is

Affirmed.