Bristol v. . Pearson

MerrimoN, C. J. after stating the case: After the appeal was taken, bringing the whole matter of the motion into this Court, it was irregular and improper to make the motion in the Court below to withdraw and abandon the motion to attach, because the appeal brought the same here until it should be disposed of in some appropriate way. The Court below did not have such control of the matter as to make an effectual disposition of it. The application of the defendant appellee John A. Dickson to be allowed to abandon the motion to attach the plaintiff must be allowed, and an entry to that effect made in the Court below. But this allowance cannot affect the motion as to other intended creditors, because the motion was applied for and allowed at the instance of and for the benefit of the *721 others as well as his. They were parties to the action, and the notice of the motion was signed by Dickson “for himself and other creditors,” and the affidavit in support of the motion purported expressly to be for their benefit. Moreover, the counsel who made the motion represented all the interested creditors, and no one of them made any suggestion or opposition to it. Thus they being before the Court and so represented by counsel, were at once parties to and participating in the motion for their benefit; they were subject to the order of the Court in that respect and concluded by its order, and they were as well liable for costs. The motion was made at their instance and for their benefit as well as the same for Dickson. The affidavit made by the latter was sufficient to serve the common purpose of all the interested creditors. Who they were was shown by the record, and that was a sufficient designaiion of them in connection with the motion. So that the appeal must be disposed of upon its merits, in the absence of a motion of the appellant to dismiss or withdraw it. It was found as a fact and admitted, as appears from the case settled on appeal, that the plaintiff assignee had intentionally and wilfully disbursed the funds in his hands wherewith he was charged otherwise than as by the decree and express order of the Court. Obviously, the Court had authority to enforce its orders, decrees and judgment by attachment, when the parties complained of were before it. It is a. legitimate and approved method of enforcing its orders, as. well as the order of and respect due the Court. In re Davies, 81 N. C , 72; Bond v. Bond, 69 N. C., 97; Thompson v. Onley, 96 N. C., 9; In re Patterson, 99 N. C., 407. Affirmed.