North State Savings & Loan Corp. v. Carter Development Co.

Court of Appeals of North Carolina

North State Savings & Loan Corp. v. Carter Development Co.

350 S.E.2d 374, 83 N.C. App. 422, 1986 N.C. App. LEXIS 2722

CourtCourt of Appeals of North Carolina

DecidedNovember 25, 1986

DocketNo. 863SC495

StatusPublished

This text of 350 S.E.2d 374 (North State Savings & Loan Corp. v. Carter Development Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

North State Savings & Loan Corp. v. Carter Development Co., 350 S.E.2d 374, 83 N.C. App. 422, 1986 N.C. App. LEXIS 2722 (N.C. Ct. App. 1986).

Pincite

Opinion

WEBB, Judge.

The sale in this case was conducted pursuant to G.S. 1-440.44 which provides in part:

(a) The sheriff shall apply to the clerk or the judge for authority to sell property, or any share or interest therein, seized pursuant to an order of attachment,

[424]*424(1) If the property is perishable, or

(2) If the property is not perishable, but

a. Will materially deteriorate in value pending litigation.

Neither party questions the propriety of ordering a sale pursuant to this section. G.S. 1-440.9 provides:

The Court of proper jurisdiction, before which any matter is pending under the provisions of this Article, shall have authority to fix and determine all necessary procedural details in all instances in which the statute fails to make definite provision as to such procedure.

We believe that G.S. 1-440.9 gives the clerk sufficient authority to stop the sale as she did in this case. The sheriffs announcement at the sale that the aircraft would be sold free of the plaintiffs lien was at variance with the notice that Carter Development’s interest would be sold. We can take notice of the fact that the aircraft brought at the first sale only a small fraction of its value. With these factors in mind the clerk had sufficient supervisory powers under the statute to order a new sale.

The appellant has assigned error to the findings of fact and the failure to find certain facts which he says are shown by un-contradicted evidence. We do not believe the answers to these assignments of error are determinative of the case. The facts upon which the case turns are not in dispute. The court found sufficient facts based on the evidence for us to decide this appeal.

Affirmed.

Judge Eagles concurs. Judge BECTON concurs in the result.

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WEBB, Judge.

The sale in this case was conducted pursuant to G.S. 1-440.44 which provides in part:

(a) The sheriff shall apply to the clerk or the judge for authority to sell property, or any share or interest therein, seized pursuant to an order of attachment,

[424]*424(1) If the property is perishable, or

(2) If the property is not perishable, but

a. Will materially deteriorate in value pending litigation.

Neither party questions the propriety of ordering a sale pursuant to this section. G.S. 1-440.9 provides:

The Court of proper jurisdiction, before which any matter is pending under the provisions of this Article, shall have authority to fix and determine all necessary procedural details in all instances in which the statute fails to make definite provision as to such procedure.

We believe that G.S. 1-440.9 gives the clerk sufficient authority to stop the sale as she did in this case. The sheriffs announcement at the sale that the aircraft would be sold free of the plaintiffs lien was at variance with the notice that Carter Development’s interest would be sold. We can take notice of the fact that the aircraft brought at the first sale only a small fraction of its value. With these factors in mind the clerk had sufficient supervisory powers under the statute to order a new sale.

The appellant has assigned error to the findings of fact and the failure to find certain facts which he says are shown by un-contradicted evidence. We do not believe the answers to these assignments of error are determinative of the case. The facts upon which the case turns are not in dispute. The court found sufficient facts based on the evidence for us to decide this appeal.

Affirmed.

Judge Eagles concurs. Judge BECTON concurs in the result.

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Bluebook (online)

350 S.E.2d 374, 83 N.C. App. 422, 1986 N.C. App. LEXIS 2722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-state-savings-loan-corp-v-carter-development-co-ncctapp-1986.