Scoggins v. . Gooch

ClaeKsoN, J. Tbe question involved in this action is: Should a receiver be appointed before judgment in an action on an unsecured, simple contract, originally instituted in a court of a justice of tbe peace, where tbe party does not establish an apparent right to or lien upon tbe property of tbe defendants ? We think not. This is an action for debt against tbe defendants, brought in tbe court of a justice of tbe peace. Tbe plaintiff, in tbe court of tbe justice of tbe peace, recovered judgment of $173.72, and interest from 6 July, 1936, and costs, against tbe defendant L. H. Gooch, and be took no appeal. A judgment of nonsuit was allowed as to Alice Fleagle Gooch. Plaintiff appealed from tbe judgment of nonsuit as to Alice Fleagle Gooch to tbe Superior Court. Tbe sole issue in tbe Superior Court was whether Alice Fleagle Gooch was indebted to plaintiff. This issue was never tried, but an application was made by plaintiff for a receiver of the business and property of defendants. Tbe court below, in tbe decree appointing a permanent receiver, says: “And be is hereby made a permanent receiver of tbe property, affairs, and assets of tbe defendants L. H. Gooch and Alice Fleagle Gooch, and as such be is hereby authorized, empowered, and directed to advertise and sell tbe cafe property and assets of every description used in and in connection with tbe cafe business of tbe defendants herein referred to,” etc. N. C. Code, 1935 (Micbie), section 860, in part is as follows: “A receiver may be appointed: (1) Before judgment, on tbe application of either party, when be establishes an apparent right to property which is tbe subject of tbe action and in tbe possession of an adverse party, and tbe property or its rents and profits are in danger of being lost, or materially injured or impaired; except in cases where judgment upon failure to answer may be bad on application to tbe court.” *680 There is no property in this action which is the subject of the action and in possession of an adverse party. Plaintiff had a right to issue an execution against the property of the defendant L. H. Gooch, and, if on appeal he obtained a judgment against Alice Fleagle Gooch, to issue an execution against her. We cannot see how this action for a simple debt against defendant Alice Fleagle Gooch, on appeal to the Superior Court by plaintiff, can be converted into a receivership proceeding. It is, to say the least, an innovation. In Neighbors v. Evans, 210 N. C., 550 (554), it is said: -“A receiver may be appointed where a party establishes an apparent right to property, and the person in possession is insolvent, and ordinarily a receiver will be appointed to take charge of the rents and profits during the pendency of the action. Plaintiff does not come within the above rule. The courts look with jealousy on the application for the appointment of a receiver. It is ordinarily a harsh remedy. The right to relief must be clearly shown and also the fact that there is no other safe and expedient remedy. In some cases a bond is allowed the defendant instead of the appointment of a receiver. Woodall v. Bank, 201 N. C., 428.” N. C. Prac. & Proc. in Civil Cases (McIntosh), sec. 887, p. 1002. For the reasons given, in the judgment in the court below there is Error.