York v. Cole

111 S.E.2d 334, 251 N.C. 344, 1959 N.C. LEXIS 575

• Court: Supreme Court of North Carolina
• Decided: December 2, 1959
• Status: Published

Opinion

PeR Curiam.

Defendants .appeal from .an order appointing a receiver.

The record of this appeal does not show an appeal from a prior order in this action. However, reference to our records shows' that an appeal was taken from an order 'allowing plaintiff to amend her 'complaint when defendants’ demurrer was sustained to the original complaint. That appeal, docketed as No. 598 at this term, was dismissed 3 November 1959.

The .pendency of the appeal from an order allowing plaintiff to file an .amended complaint did not deprive the Superior Court of jurisdiction to appoint a receiver based on allegations in the amended "complaint. G.S. 1-294; Scott v. Jordan, 235 N.C. 244, 69 S.E. 2d 557.

The amended complaint alleges plaintiff, the owner of three partially furnished houses in High Point and an automobile, conveyed the houses and automobile to defendants, who took possession of the houses and furniture therein; the conveyance was procured by fraud and duress which is particularly described in the complaint. Plaintiff gave defendants notice that she would move for the appointment of a receiver to take possession of the property and collect the rents pending determination of the rights of the parties. She accompanied her. mption by her 'affidavit that defendants were insolvent.

The. complaint, supplemented by plaintiff’s 'affidavit, sufficed to support a finding that plaintiff had established an apparent right to the property, and if the property were left in defendants’ possession plaintiff was in danger of losing the rents and profits. This sufficed to authorize the order appointing a receiver. G.S. 1-502; Bank v. Waggoner, 185 N.C. 297, 117 S.E. 6. Defendants were informed by the motion and notice that they could give bond as provided by G.S. 1-503. They did not seek .the benefit of that statute.

Affirmed.