Brann v. . HanesBrann v. . Hanes
- Reporters:
- , ,
- Before:
- Connor
Action to recover of defendants, officers and directors of an insolvent bank, a sum of money on deposit in said bank, to the credit of plaintiff at the date of the appointment of a receiver therefor.
In his complaint plaintiff alleges that said deposit was received when the bank, to the knowledge of defendants, was insolvent, and further that its insolvency, resulting in loss to him as a depositor, was caused by negligence of defendants, as officers and directors of said bank. Upon these allegations he contends that defendants are personally liable to him for his loss.
The summons in the action was personally served on all the defendants, except W. M. Hanes. As to him, the summons was returned with the following endorsement by the sheriff of Forsyth County: “Not executed as to W. M. Hanes, after due diligence. W. M. Hanes cannot be found in Forsyth County.”
Warrant of attachment and order for service of summons by publication on defendant, W. M. Hanes, were issued by the clerk of the Superior Court of Forsyth County. The said clerk found from affidavits duly filed that W. M. Hanes is a nonresident of the State of North Carolina; that he has property in said State, and that plaintiff has a cause of action against said W. M. Hanes, as set out in his duly verified complaint. Said warrant and order are both dated 25 January, 1927, and were returnable before said clerk on 28 February, 1927.
On 31 January, 1927, attorneys for said defendant entered a special appearance in this action in his behalf and moved before the clerk that the attachment levied upon his property in Forsyth County, pursuant to said warrant, be vacated, for that said W. M. Hanes is not and never has been a nonresident of the State of North Carolina; it was alleged that he is now, and at all times during his life has been a resident of said State.
At the hearing of said motion, upon findings of fact made by the clerk from affidavits filed by both defendant and plaintiff, an order was entered denying the motion. From this order defendant appealed to the judge of the Superior Court holding the courts of Forsyth County.
The said judge sustained the findings of fact made by the clerk and affirmed his order.
From the order of the judge, affirming the order of the clerk, and denying the motion to vacate the attachment, defendant appealed to the Supreme Court. The sole question presented for decision by this appeal is whether there was error in holding that W. M. Hanes was a nonresident of the State of North Carolina, at the date on which the warrant of attachment and order for service of summons by publication were issued in this action within the meaning of
It appears from the findings of fact made by the clerk, and approved by the judge, all of which are set out in the order from which defendant has appealed to this Court, that prior to 1 January, 1926, W. M. Hanes was a resident of Winston-Salem, N.C. where he had been actively engaged in business for many years; that in October, 1925, he became desperately ill, suffering a relapse from tuberculosis, from which disease he had suffered, intermittently, since 1913; that while thus desperately ill, on or about 1 January, 1926, he was taken from his home in Winston-Salem, N.C. to Saranac Lake, in the State of New York, where he has maintained for many years a winter home, which he and his family had, during previous years, occupied from time to time.
Upon the foregoing facts there is no error in the holding that W. M. Hanes is a nonresident of the State of North Carolina, within the meaning of
Whether or not the defendant has retained his domicile in this State, is not determinative of the question here presented for decision. In Wheeler v. Cobb, 75 N.C. 21, it is said that one may be a nonresident without losing his domicile or rights of citizenship in the State of his origin or gaining a domicile in another State. It is there held that one may have his domicile in North Carolina, and his residence elsewhere, and that, therefore, where one voluntarily removes from this to another State, for the purpose of discharging the duties of an office of indefinite duration, which requires his continued presence there for an unlimited time, such person is a nonresident of this State for the purpose of attachment, notwithstanding he may visit the State and have the intent to return at some time in the future. This principle has been uniformly and consistently approved in subsequent decisions of this Court. Ransom v. Comrs., ante, 237; Roanoke Rapids v. Patterson, 184 N.C. 135; Mahoney v. Tyler, 136 N.C. 41; Howland v. Marshall, 127 N.C. 427; Chitty v. Chitty, 118 N.C. 647; Fulton v. Roberts, 113 N.C. 422; Carden v. Carden, 107 N.C. 215.
In Chitty v. Chitty, 118 N.C. 647, Faircloth, C.J., says: “The definitions of `residence\’ are sometimes apparently conflicting, owing mainly to the nature of the subject with which the word is used, the purpose being always to give it such meaning and force as will effectuate the intention of that particular statute.” The statutes providing for service of summons by publication, and attachment of property within the State, were enacted for the purpose of enabling the courts of this State in cases to which the statutes are applicable, to acquire jurisdiction to pass upon and adjudicate the rights of a plaintiff against a defendant, who has property in the State, but upon whom summons cannot be personally served, because of his absence from the State, and therefore not subject to personal service of process issuing from its courts. Where defendant, against whom a plaintiff has a cause of action, has property in the State, but is absent therefrom for an indefinite duration of time, with no intention to return within a period reasonably definite, he is, for the purpose of attachment of his property and service of summons by publication, a nonresident in law as well as in fact. The best evidence to the contrary would be his return to the State, where summons could be served upon him, personally, as upon other residents. Whatever be the cause of his absence from the State, if such absence prevents personal service of summons upon him during an indefinite period of time, he cannot complain that in law he is held to be a nonresident of the State for purposes of service of summons upon him, and attachment of his property situate within the State, as foundation for service of summons by publication. If upon the levy of an attachment upon his property, he promptly returns to the State, and thereby subjects himself to personal service of summons, his motion to vacate the attachment upon the ground that he is not a nonresident, would seem generally to be well sustained. If his situation be such that he cannot, without loss to himself, or without personal risk which he does not care to incur, return to the State, of which he contends that he is a resident, he may, of course, accept service of summons (
The defendant, W. M. Hanes, is not now subject to personal service of summons in this action, because he is not within the State; it is manifest, we think, from the facts appearing in this record, that he will not be subject to such service in the future within any reasonable time. He is in law as well as in fact a nonresident of the State. There is, therefore, no error in the refusal of the court, by its order herein, to vacate the attachment, which upon the facts of this cause would require the dismissal of the action, for without the attachment the service of the summons by publication would be ineffective. Everitt v. Austin, 169 N.C. 622.
Our decision in the instant case is supported by authorities, not only in this State, but elsewhere. See annotation in 26 A.L.R., p. 180, where many cases are cited and discussed. All the authorities sustain the following statement of the law:
Affirmed.