Mitchell v. . Talley

Hoice, J. In the recent case of Tisdale v. Eubanks, 180 N. C., 153 and 155, the Court, in upholding the writ of attachment in an action for slander, had occasion to refer to the successive statutes controlling the matter, by which the lawful use of this writ has been continuously enlarged until under the latest amendment, C. S., 798, subsee. 4, the right is extended to actions for “any injury to the person, caused by negligence or wrongful act,” and it was there said that the history of this legislation and this, the latest amendment to the law, showed an *686 evident intent on tbe part of tbe Legislature to broaden tbe right to tbis writ and make tbe same well-nigb coextensive witb any well grounded demand for judgment in personam. Under tbis, tbe correct interpretation, we are of opinion that our statute appertaining to attachments, from tbe language used and tbe purpose and policy of tbe Legislature as evinced in these various amendments, is sufficiently comprehensive, to include tbe action for “causing tbe death of another by wrongful act, neglect or default of another,” as provided in cb. IY, see. 160, of tbe Consolidated Statutes. "While we have repeatedly held, and tbe position is in accord witb 'the authoritative cases on the subject elsewhere, that tbis law, commonly designated as tbe Lord Campbell’s Act, has tbe effect of creating a new cause of action in tbe sense that such a suit could not be maintained at common law, it will appear from tbe better considered decisions construing tbe statute, both in England and in tbis country, that its purpose was to withdraw claims of tbis kind from tbe effect and operation of tbe maxim, actio personalis moritur cum persona, and that tbe action did not thereby lose its identity, but that tbe basis of such a claim continued to be tbe wrongful injury to tbe person resulting in death. Applying tbe principle, though there are cases to tbe contrary, it has been very generally held that if, in case of willful injury causing tbe death, tbe defendant was acting in bis necessary self-defense, or in case of negligence, if tbe deceased at tbe time was guilty of contributory negligence, or if tbe injured party bad given a release of bad been settled witb for tbe injury during bis life, either by adjustment inter partes or by suit, under tbe statute no recovery could be bad for tbe death, thus showing that in ease of death following a wrongful injury there were not two causes of action contemplated, but one, and that tbe “injury to tbe person” continued to be a constituent and essential feature of tbe action provided for, and so, as stated, coming under tbe broad and comprehensive terms of our law of attachment affording tbe remedy for “injury to tbe person by negligence or any wrongful act.” Chemical Co. v. Edwards, 170 N. C., 551; Mich. Central R. R. v. Vreeland, 227 U. S., 59-70; Lincoln v. Detroit, etc., R. R., 179 Mich., 189; Read v. Great Eastern, 3 L. R., 867-68, p. 555; Hecht v. R. R., 132 Ind., 507; Littlewood v. Mayor, 89 N. Y., 24; Crape v. City of Syracuse, 183 N. Y., 395; Tiffany, Death by Wrongful Act, sec. 124; 8 R. C. L., 786-790. In Chemical Co. v. Edwards, supra, bolding that a judgment for tbe wrong, duly paid to tbe injured party in bis life, would bar any action to recover for tbe death, after quoting from tbe opinion of Sapallo, J., in Littlewood v. Mayor, supra, it was said: “These views of tbe learned judge, arising chiefly from tbe language of tbe statute, derive strong *687 support from tbe suggestion tbat altbougb the statute may be considered in some respects as creating a new right of action, it has its foundation in a single wrong.” And in Vreeland’s case, supra, Associate Justice Lurton, delivering the opinion, “But as the foundation of the right of action is the original wrongful injury to the decedent, it has been generally held that the new action is a right dependent on the existence of a right in the decedent. And in Hecht v. Ohio Valley R. R., it was said, among other things: “Although some items of evidence may be competent, or even necessary, in one case and not in the other, and the method of proof may differ, still the action in either ease is based on the negligence of the defendant in causing the same identical injury, and the damages in either case grow out of such negligence.” . It will be understood that we do not intend to qualify the principle upheld in our decisions, Causey v. R. R., 166 N. C., 5, and others, that the statute commonly known as Lord Campbell’s Act creates a new cause of action, but we are of opinion, and so hold, that the action it does create is so involved in and dependent 'upon the injury to the person which results in death as to bring the same within the broad and comprehensive language of our statute on attachment, authorizing the issuance of the writ. We do not consider it necessary or desirable to advert especially to the authorities cited by intervener tending to show that the wrongful causing of another’s death is not included in the terms “injuries to the person.” Some of them undoubtedly are in support of defendant’s position, but the question, as a rule, was presented in facts differing from those of the instant case, and in the construction of statutes having terms of less comprehensive import and permitting other construction than our law as to writs of attachment. While we have dealt somewhat at length with the ruling of the court vacating the writ, because, as the record now appears, the right of plaintiff to further continue the present suit is dependent on its validity, we must not be understood to hold that the intervener, Mrs. Talley, has the right to raise this question, coming into court and claiming the property held by it, she submits her case to the court’s jurisdiction, and the only question open to her is whether she has an interest in the property superior to that conferred by the writ of attachment. In a case at the present term, Feed Co. v. Feed Co., post, 690, it was earnestly contended before us that an intervener could raise the question of the court’s jurisdiction, and in disapproval of the position, Stacy, J., delivering the opinion, said: “This jurisdictional question, arising from an alleged want of proper service, is sought to be raised by the intervener, after having taken the property under proper bonds for its forthcoming. We have held in Forbis v. Lumber Co., 165 N. C., 403, and cases cited *688 therein, that this position is not open to appellant. It is entitled to be beard only upon one issue, viz.: Does the property attached belong to it (the intervener) ? Bank v. Furniture Co., 120 N. C., 477.” As to the rights of the intervener and on the facts as they now appear in the record, her claim is based oil a preliminary judgment of the Superior Court of Rockingham County, purporting to be under C. S., 1667, providing for an award of alimony without divorce, and we deem it not amiss to say that a perusal of this statute will disclose that the relief in such cases must be wrought by civil action, and for the proper maintenance of which there must be either personal service of summons on defendant within the jurisdiction or voluntary appearance by him, or there must be at least constructive service by publication, Johnson v. Whilden, 166 N. C., 104, and while the statute provides that an order for temporary support may be made in the cause -without notice of such an application, where the defendant, having abandoned his wife, is absent from the State or is in parts unknown, etc., etc., and our authorities seem to hold that as against such a defendant an award of alimony may be made effective against his property situated within the State without personal service and without an attachment levied, White v. White, 179 N. C., 592, it does not necessarily follow that such a judgment would prevail as against the lien of a valid attachment first levied in another court of concurrent or equal jurisdiction, and in any event and as now advised the rights of the parties presented in this litigation must be determined in the present suit and not otherwise. One Superior Oourt has no power to revoke or modify the orders and judgment of another of which the latter has acquired and holds jurisdiction. Bear v. Cohen, 65 N. C., 511. On the facts as now presented, this opinion will be certified that judgment vacating the attachment be reversed. The amount of plaintiff’s damages be ascertained, and the issue then determined between the plaintiff and the intervener as to their respective rights and interests in the property levied on. Reversed.