99 S.E. 104 | N.C. | 1919
The plaintiff alleged that the defendants are indebted to it in the sum of $1,917.10, being the balance due on an account for (405) manufacturing the lumber of defendants at its plant and for other services rendered in connection therewith. Plaintiff applied for a warrant of attachment upon the ground, as stated in its affidavit, that the defendant, Foy-Seawell Lumber Company, either had assigned, disposed of or subscribed its property, or was about to do so, with intent to defraud its creditors. A warrant of attachment was issued and levied upon the property of the defendant company described in the sheriff's return thereon. Plaintiff alleged, in its affidavit, that the defendant had promised to assign to it the bill of lading for certain lumber, on which plaintiff had worked, before the same was shipped, and that defendant had failed to comply with its promise, but on the contrary, had shipped out the lumber in a car without plaintiff's knowledge or consent, and *428 the car containing the lumber was proceeding on its journey to a point without the State and the jurisdiction of the court when the warrant was levied upon the lumber at an intermediate station.
Defendant moved to vacate the attachment for the reason that the affidavit did not sufficiently state the grounds upon which plaintiff based its belief that defendant was disposing of its property with intent to defraud its creditors. The court refused to vacate the attachment, and defendant excepted and appealed, but did not prosecute its appeal, and abandoned it.
The case was referred to Mr. W. T. Morgan, of Marion, N.C. to take and state an account of the transaction, as alleged in the pleadings, which he did, and then made his report to the court. Exceptions were filed thereto by the defendant which, upon being heard by the judge, were overruled, and defendant excepted. There were six exceptions, and all but the sixth — which was merely formal — and the forth and fifth, which will be hereinafter separately considered, were taken to the referee's findings of fact, which upon review were approved by the judge.
Judgment was rendered for the plaintiff, and the property attached was (by consent without prejudice) ordered to be sold, and the court then adjudged that it be applied to the payment of the judgment. Defendant excepted and appealed. We doubt if the judgment is a final one, so that an appeal will lie from it, as there were other things to be done, but waiving this question for the present, we will consider the exceptions so as not to prolong the litigation.
The referee found that a valid attachment had been issued (406) and levied upon the defendants' property, and it is objected by the latter that this was not a finding of fact as to the fraud in disposing of the property. But we regard this as immaterial. The judge correctly ruled that the attachment was properly issued, and in the absence of any special findings of fact by him we must assume that he found those facts which would support his order. Lumber Co. v. Buhmann,
If the defendants desired a specific finding of the facts it should have requested it. Lumber Co. v. Buhmann, supra; Gardiner v. May, supra, citingMcLeod v. Gooch, supra. But we need not longer dwell on this matter, as upon an examination of the affidavit we are of the opinion *429 that it contains statements from which he could fairly and reasonably find, as he evidently did, that the defendant had not only violated its plainly expressed agreement that it would not remove the lumber without assigning the bill of lading to the plaintiff, but that the defendant had actually shipped its property secretly and surreptitiously, with the intent to hinder, delay, and defeat its creditors. Why should it have shipped, in the manner it did, without transferring the bill of lading in direct breach of its promise and without giving the plaintiff any notice of what it intended to do? This was a very suspicious circumstance, and the defendant's entire conduct was calculated to impress the judge with the conviction that its purpose was not an honest one, as it had attempted, as fast as it could do so, to put its property beyond the reach of the plaintiff, when it was caught in the act. In passing upon such questions we are permitted some latitude in finding the fact of fraud. There was no reason for such hasty and clandestine action if the intent, was a fair and innocent one. Our conclusion that the judge was right, in any view, when he refused to vacate the attachment, makes it immaterial to discuss the exceptions as to the finding of the referee upon the same question. The fraudulent disposition of its property by defendant, as alleged in the attachment proceedings, was entirely collateral to the main issue in the case, which was whether defendant was indebted to the plaintiff, and if so, in what amount. Such an attachment is intended by the law to place the property in its custody as a security for the payment of the debt, if finally there is a judgment for it.
The statute provides that "in case judgment be entered for plaintiff in the action, the sheriff shall satisfy the same out of the property attached by him if it shall be sufficient for that purpose," and then the method of doing so is prescribed. Rev., sec. 784. It has been held that attachment is simply a levy before judgment to preserve and make effective the ultimate recovery of the plaintiff, and when execution is issued upon the judgment, it is his duty to sell the (407) attached property. Mfg. Co. v. Steinmetz,
The referee found that the attachment was validly issued, and the presiding judge affirmed all of his findings of fact and conclusions of law. As to the referee's findings of fact, there was evidence to support them, and they were fully considered and approved by the judge. When this is the case, we do not review them here. The authorities to this effect are numerous. Battle v. Mayo,
There was no error in the rulings and judgment below.
No error.
Cited: S. v. Jackson,
