Stephens Howard Co. v. Baer

166 S.E. 77, 203 N.C. 355, 1932 N.C. LEXIS 397

• Court: Supreme Court of North Carolina
• Decided: October 19, 1932
• Status: Published

Opinion

Brogden, J.

The only question of law presented by the appeal is whether the affidavit and complaint are sufficient to justify the issuance of the warrant of attachment against the defendant, who is a resident of this State.

There are two decisions of this Court directly in point: The first is Judd v. Mining Co., 120 N. C., 398, 27 S. E., 81, and the other is Bank v. Cotton Factory, 179 N. C., 203, 102 S. E., 195. A petition to rehear the case was denied in Bank v. Cotton Factory, 180 N. C., 128, 104 S. E., 129. The opinion in the original case asserts: “The precedents seem to hold that the affidavit upon which the warrant of attachment was issued is insufficient. It alleges that the defendant is about to assign, dispose of, and secrete the sum of money in the sheriff’s hands with intent to defraud its creditors, but it fails to set forth the grounds upon which this belief is based. This omission is fatal.” The original record in the case discloses that the pertinent part of the affidavit was in the following language: “And that the said defendant is about to receive and dispose of, and assign and secrete the said sum of money with intent to defraud its creditors.” The affidavits in the Bank case, supra, and the Judd case, supra, are almost in the identical language of the affidavit in the case at bar, and the foregoing opinions of the Court are decisive of the present controversy.

The fact that a resident creditor has written or is about to write checks to pay a portion of his indebtedness, and at the same time refuses to pay other creditors, does not constitute secreting, assigning or disposing of his property with intent to defraud his creditors.

Affirmed.