Roseman Feed Co. v. Nashville Grain & Feed Co.

Stacy, J. The first exception appearing on the record is directed to his Honor’s refusal to vacate the warrants of attachment, for that it does not appear affirmatively that the property attached belongs to the nonresident defendants, and it is therefore contended that the court was without authority to proceed further in the cause. It should be observed that the defendants have made no appearance and filed no answer in either case. This jurisdictional question, arising from an alleged want of proper servipe, is sought to be raised by the intervener after having taken the property upon the execution of bonds which were to stand in lieu thereof. We have held in Forbis v. Lamber Co., 165 N. C., 403, and cases cited therein, that this position was not open to appellant. It is entitled to be heard only upon one issue, viz.: Does the property attached belong to it ? Bank v. Furniture Co., 120 N. C., 477. The intervening bank ostensibly has no interest in the merits of the actions pending between the present plaintiffs'and the present defendants. Furthermore, this is an objection which, even if valid, might be waived by the defendants; and hence a stranger will not be permitted to make it for them. Blair v. Puryear, 87 N. C., 101. If the intervener held the drafts as a purchaser for value, the proceeds derived therefrom could not be attached in the hands of the Marion and Lincolnton banks as the property of the Nashville Grain and Feed Company; but, on the other hand, if the intervener acted merely as a collecting agent, the proceeds would belong to the defendants, and conse *692 quently they would be subject to attachment in tbe bands of tbe local garnishee banks. Worth Co. v. Feed Co., 172 N. C., 335. Tbe case was tried upon this theory and tbe question of ownership, as found by tbe jury, has been determined against tbe intervener. Applying these settled principles to tbe facts presented, it follows that tbe remaining exceptions must be overruled. His Honor charged correctly on tbe burden of proof and ruled properly on tbe plea of estoppel. After carefully examining appellant’s exceptions and assignments of error, we have found no sufficient reason for disturbing the result. _ No error.