Mitchell v. Elizabeth City Lumber Co.

Hoke, J., after stating the case: It was suggested on the argument that the defendants’ appeal might be premature, but our decisions are to the effect that the refusal to dismiss a warrant of attachment is an ap- *398 pealable order, and, unless appealed from, tbe questions involved become res adjudicatei. Judd v. Mining Co., 120 N. C., 397; Sheldon v. Kivett, 110 N. C., 408; Roulhac v. Brown, 87 N. C., 1. On tbe principal question, while it is recognized, as contended by defendant, tbat wben an attachment has been issued it must be followed by service of tbe summons, personally or by publication (Finch v. Slater, 152 N. C., 165), we concur in tbe view of bis Honor, tbat where property has been levied on under tbe writ, a bond given by defendants in discharge of tbe attachment as provided by tbe statute will be considered equivalent to a personal appearance in tbe action and a waiver of tbe requirement for further service of the summons. It amounts to a voluntary submission of defendant’s cause to tbe jurisdiction of tbe court. This is stated for law in Drake on Attachments, sec. 332; and in Shinn on Attachments, sec. 288, tbe author says tbat it has been so held in courts where tbe question bad been presented. Tbe cases referred to by these authors are in full support of their statements. Blyler v. Kline, 64 Pa. St., 130; Richard v. Mooney, 39 Miss., 357; Cheatam v. Morrison, 37 S. C., 187. While this ruling may be departed from or modified in some jurisdictions, owing to varying provisions of their statutes controlling tbe subject, tbe Legislature in this State, Revisal, secs. 774 and 775, clearly contemplates tbat a bond given by defendant in discharge of tbe writ shall only be received after a general appearance entered. Tbe very form of tbe bond given by defendant and sureties pursuant to our statute would seem to justify such a position, tbe instrument signed by defendants and their sureties stipulating that if tbe property levied on be delivered to defendants they will return tbe property, “provided said plaintiffs recover judgment in tbe action,” and pay all costs awarded against them, and in default thereof, will pay to plaintiffs tbe value of said property and all costs and damages tbat may be awarded against them in tbe action. We find no error in bis Honor’s ruling, and tbe judgment below is Affirmed.