114 S.E. 162 | N.C. | 1922
STACY, J., not sitting. Civil action to recover of defendant, the Eades Hay Company, $2,125 damage for shortage on shipment of hay sold by said company to plaintiff, said Eades Hay Company, being a nonresident corporation, service of summons was had only by publication. At the instance of plaintiff company, process of attachment was sued out and levied by the sheriff of New Hanover County, or a duly authorized deputy, on certain moneys held by the Citizens Bank and Trust Company of Wilmington, alleged to belong to the principal defendant. The warrant of attachment issuing from the Superior Court was addressed to any constable or other lawful officer of New Hanover County — greeting, and the garnishee, making special appearance for the purpose, moved to discharge the *241 warrant and dismiss the suit, because same was not addressed to the sheriff of the county. The court, Daniels, J., presiding, allowed an amendment to the process causing same to be addressed to the sheriff, and thereupon overruled the motion, and garnishee excepted. The garnishee then filed an answer duly verified as follows: "The Citizens Bank and Trust Company, garnishee, reserving its rights in the motion heretofore filed, and reserving its exception to the ruling of the court thereon, says that the Eades Hay Company has not forwarded us any drafts for collection, and we have no funds that we are holding for their account. It has the money from five drafts sent to it by the Interstate National Bank of Kansas City, on J. P. Temple, which were paid by him, for $359.35, $310.12, $316.95, $375.35, and for $305.35, respectively; that these drafts were sent to the Citizens Bank and Trust Company by the Interstate National Bank to collect as its agent, and said funds are held subject to the order of the Interstate National Bank, unless this Court order otherwise hereafter."
Subsequently, at December Term, 1921, before his Honor, G. W. Connor, application was made that the Interstate National Bank of Kansas City, referred to in the answer of the garnishee, be made a party and allowed to assert its claim to the debt. The application was denied and the garnishee and the Interstate Bank excepted. Thereupon, on issues submitted, the jury rendered the following verdict:
"1. Is the Citizens Bank and Trust Company, garnishee, indebted to the Eades Hay Company, and, if so, in what amount? Answer: `Yes, $1,667.12.'
"2. What sum, if any, is the plaintiff entitled to recover of the Eades Hay Company as damages for the breach of contract for the delivery of hay? Answer: `$2,125.'"
Judgment was entered for the damages assessed against the Eades Hay Company, and that the amount of money in the hands of the garnishee be applied to the payment of said judgment to the extent of $1,667.12. Garnishee excepted, and appealed.
Under the statute applicable, the process of attachment issuing from the Superior Court should be addressed to the sheriff of the county and executed by him or one of his duly authorized deputies. Carson v. Woodrow,
New trial.
STACY, J., not sitting.