General Motors Acceptance Corp. v. Waugh

Pee Oueiam. N. C. Code, 1931 (Michie), sec. 830, is as follows: “The plaintiff in an action to recover tbe possession of personal property may, at tbe time of issuing tbe summons or at any time before answer, claim tbe immediate delivery of tbe property, as provided in tbis article.” An action for tbe possession of property must be brought against tbe party in possession. Houghton v. Newberry, 69 N. C., 456; Webb v. Taylor, 80 N. C., 305; Moore v. Brady, 125 N. C., 35 (37). Claim and delivery is not maintainable against one who has neither possession nor control of tbe property sought to be recovered, but who has sold and delivered it to another party. Webb v. Taylor, 80 N. C., 305. Tbe affidavit and requisites of claim and delivery are set forth in section 831 (2), which is as follows: “Where a delivery is claimed; an affidavit must be made before tbe clerk of tbe court in which tbe action is required to be tried or before some person competent to administer oaths, by tbe plaintiff, or someone in bis behalf, showing — (2) tbat tbe property is wrongfully detained by tbe defendant.” Section 834 is as follows: “Upon tbe receipt of tbe order from the clerk with tbe plaintiff’s undertaking tbe sheriff shall forthwith take tbe *720 property described in tbe affidavit, if it is in tbe possession of tbe defendant or bis agent, and retain it in bis custody. He shall also, without delay, serve on tbe defendant a copy of tbe affidavit, notice, and undertaking, by delivering tbe same to him personally, if be can be found, or to bis agent, from whose possession tbe property is taken; or, if neither can be found, by leaving them at tbe usual place of abode of either, with some person of suitable age and discretion.” Section 836 is as follows: “At any time before tbe delivery of tbe property to tbe plaintiff, tbe defendant may, if be does not except to tbe sureties of tbe plaintiff, require tbe return thereof, upon giving to tbe sheriff a written undertaking, payable to tbe plaintiff, executed by one or more sufficient sureties, to tbe effect that they are bound in double tbe value of tbe property, as stated in tbe affidavit of tbe plaintiff, for tbe delivery thereof to tbe plaintiff, with damages for its deterioration and detention, and tbe costs, if delivery can be bad, and if delivery cannot be bad, for tbe payment to him of such sum as may be recovered against tbe defendant for tbe value of tbe property at tbe time of tbe wrongful taking or detention, with interest thereon, as damages for such taking and detention, together with tbe costs of tbe action. If a return of tbe property is not so required, within three days after tbe taking and service of notice to tbe defendant, it must be delivered to tbe plaintiff, unless it is claimed by an interpleader. Tbe defendant’s undertaking shall include liability for costs, as provided in this section, only where tbe undertaking is given in actions instituted in tbe Superior Court.” C. S., 840, sets forth proceeding when property is claimed by a third person. On tbe argument of this case, we were under tbe impression that tbe nonsuit in tbe court below was correct. Tbe defendant in bis brief says: “Therefore, possession not having been shown in tbe defendant Brown at any time, and it positively appearing that other named persons actually bad possession, nonsuit should have been entered as to him. Hence, tbe Superior Court’s reversal of tbe municipal court of High Point should be affirmed.” We are bound by tbe record here, it imports verity. It appears in tbe judgment in tbe municipal court “it was agreed by tbe parties that tbe same should be beard by tbe court without a jury.” It further appears: “It is found as a fact that this is a claim and delivery action, and that tbe defendant Gr. A. Brown file herein a replevy bond and retain tbe possession of tbe car herein.” Under this finding of fact, it is presumed that tbe parties complied with tbe law above set forth, that tbe sheriff took tbe property which was in tbe possession of tbe defendant Brown, C. S., 834, and tbe defendant Brown gave tbe undertaking, as required by C. S., 836. *721 It is well settled that the record in regard to these matters cannot be considered in evidence unless admitted or introduced on the trial. In the findings of facts in this case by the municipal court, we think that the defendant Brown is estopped to make the contentions that the property, when seized, was not in his possession. Mrs. G. B. Barnhart did not interplead, as she had a right to do under C. S., 840, supra. For the reasons given, the judgment must be Eeversed.