Hagedorn v. . Hagedorn

Stacy, C. J. We are precluded from deciding the questions debated on brief and argument, i.e., the power of the court to order Heyman Hagedorn, individually or as treasurer of the corporate defendant, to appear for examination under C. S., 900, and to strike out the answer under authority of C. S., 903, for failure to comply, because of the alternative condition attached to the order, which renders it void. Myers v. Barnhardt, 202 N. C., 49, 161 S. E., 715; Flinchum v. Doughton, 200 N. C., 770, 158 S. E., 486; Lloyd v. Lbr. Co., 167 N. C., 97, 83 S. E., 248; Strickland v. Cox, 102 N. C., 411, 9 S. E., 414. In McIntosh on N. C. Practice and Procedure, page 731, it is said: “A conditional judgment is one whose force depends upon the performance or nonperformance of certain acts to be done in the future by one of the parties, as where a judgment was given for plaintiff, to be stricken out if the defendant filed a bond within a certain time, and this was held to be void,” citing as authority for the position Strickland v. Cox, supra. This definition was quoted with approval in Killian v. Chair Co., 202 N. C., 23, 161 S. E., 546. In the instant case, the effectiveness of the order striking out the answer, from which the defendant appeals, was made dependent upon the failure of Heyman Hagedorn, treasurer of the corporate defendant, to appear for examination, prior to the commencement date of the order. This rendered it alternative or conditional. S. v. Perkins, 82 N. C., 682; Dunn v. Barnes, 73 N. C., 273. While Heyman Hagedorn was not served with summons, it is observed be verified the answer of the corporate defendant and speaks of himself *166 therein as the “defendant Heyman Hagedorn.” It is also alleged, and found as a fact by the court below, that the Forsyth Equipment Company is but a corporate cloak used by Heyman Hagedorn to avoid service of process in this jurisdiction and to defraud the plaintiff of her support. Whether these considerations are sufficient to make him amenable to the orders of the court is a matter for further consideration in the Superior Court. Harrell v. Welstead, 206 N. C., 817, 175 S. E., 283; Abbitt v. Gregory, 196 N. C., 9, 144 S. E., 297; Johnson v. Mills Co., 196 N. C., 93, 144 S. E., 534. Error.