Core v. . McCoy and Company

Pee Cubiam. Tbe plaintiff, living temporarily with ber son, Y. R. Core, went on a visit to ber brother in West Virginia on 1 February, 1930. She left ber furniture in ber son’s bouse in Charlotte. On 3 May, 1930, be left Charlotte and went to Chicago. He bad become indebted to McCoy and Company in tbe sum of $129.15, to Culp Brothers in tbe sum of $32.70, and to Ed Mellon Company in tbe sum of $87.50. Before going to Chicago be stored bis furniture and tbe plaintiff’s in a warehouse and signed a storage contract in bis own name. Tbe defendants caused warrants of attachment to be issued against the property of Y. R. Core, but not against tbe property of tbe plaintiff. Tbe appellants moved for judgment of nonsuit. They say that tbe plaintiff’s allegations are not sustained by tbe evidence; that tbe appellants did not cause tbe officers to levy tbe attachment on tbe plaintiff’s property; and that an attaching creditor who does not direct or assist tbe officer or otherwise aid him in committing a trespass is not liable in damages to a stranger or third party whose property is wrongfully sold. In our opinion tbe motion for nonsuit should have been granted. The officer who sold tbe property is not a party to tbe action and tbe question of bis liability is not before us. Tatham v. DeHart, 183 N. C., 657; Gay v. Mitchell, 146 N. C., 509. In declining tbe defendants’ mo *120 tion bis Honor probably bad in mind tbe case of Flowers v. Spears, 190 N. C., 747; but it will be seen by reference to tbe record in that case that tbe sheriff bad been notified a short time after tbe warrant of attachment bad been issued that tbe attached property was owned by tbe plaintiff, and that tbe court instructed tbe jury in reference to a sale by all tbe defendants, not by tbe sheriff alone. In tbe present case we find no evidence that tbe officer or tbe defendants bad any notice, actual or constructive, of tbe plaintiff’s claim, or that tbe defendants received any part of tbe proceeds of tbe sale with knowledge that any person other than tbe defendant bad or claimed an interest in tbe property attached or that defendants with knowledge of tbe wrong ratified tbe officer’s act. Tbe controlling principle has been stated as follows: “While an attaching creditor may be held liable, jointly with tbe levying officer and independently of any bond, for a wrongful seizure, under tbe attachment, of property of a person other than defendant in attachment, such liability is confined to cases in which be counseled, directed, or consented to tbe illegal act of tbe levying officer, or, knowing that tbe acts of tbe officer were wrongful or irregular, adopted, ratified, or confirmed them; and for a wrongful seizure with which tbe attaching creditor was not so connected be cannot be held liable, but tbe injured person must seek bis redress solely against tbe levying officer and tbe sureties on bis bond.” 6 C. J., 416, sec. 966. It is not contended that tbe evidence makes a ease of malicious prosecution or abuse of process. Wright v. Harris, 160 N. C., 543; Mahoney v. Tyler, 136 N. C., 40. Judgment Reversed.