177 S.E.2d 328 | N.C. Ct. App. | 1970
W. C. PALMER and wife, Hazel H. Palmer
v.
M. R. S. DEVELOPMENT CORPORATION.
Court of Appeals of North Carolina.
*329 West & Groome, by H. Houston Groome, Jr., Lenoir, for plaintiffs appellants.
Collier, Harris & Homesley, by Richard M. Pearman, Jr., Statesville, for defendant appellee.
BRITT, Judge.
Although certain proceedings in this case as revealed by the record, particularly the brief notice of hearing provided plaintiffs or their attorneys and the filing of orders twelve days after rendition, are not to be commended, we hold that Judge Beal exercised lawful authority in requiring plaintiffs to increase their bond or have their attachment dismissed, and dismissing the attachment when plaintiffs failed to post the additional bond within the time fixed.
*330 G.S. § 1-440.40(a) provides that "(a)t any time before judgment in the principal action, on motion of the defendant, the clerk or judge may, if he deems it necessary in order to provide adequate protection, require an increase in the amount of the bond previously given by or required of the plaintiff." G.S. § 1-440.9 authorizes a court of proper jurisdiction to fix all necessary procedural details in any matter pending under the provisions of Article 35 of Chapter 1 entitled "Attachment" where the statute fails to make definite provision.
Article 35 does not specifically authorize the court to dissolve or dismiss an attachment when a plaintiff fails to carry out the court's order to increase the bond, but pursuant to the general authorization of G.S. § 1-440.9 to fix all procedural details not specified elsewhere and in aid of its own jurisdiction over the matter, we think the court has authority to dissolve an attachment after the court's lawful order has not been carried out. Luff v. Levey, 203 N.C. 783, 166 S.E. 922 (1932), is distinguishable from the instant case. In the Luff case the Superior Court in a single order provided that plaintiff's bond should be increased a specified sum and "upon failure of the plaintiff to comply with this order, within the above time specified, the attachment heretofore issued in this cause shall be vacated and discharged ipso facto, without further action by the court." The Supreme Court held that while the order requiring an increased bond was wholly valid, the condition annexed was invalid. In the instant case Judge Beal entered a second order in which he found that the increased bond required by his previous order was not posted within the time specified and because thereof dismissed the attachment.
Plaintiff's contention that they were entitled to a jury trial on the question of increasing the bond is without merit. We do not think the "issues" envisioned by G.S. § 1-440.36(c) include the size of a plaintiff's bond.
The orders of the superior court appealed from are
Affirmed.
CAMPBELL and HEDRICK, JJ., concur.
