Opinion
(October Term, 1882.)
Attachment Proceedings — Interpleader.
Third persons, upon proper allegation of an interest in the property attached, have the right to intervene to make up a collateral issue; but whether the attachment proceedings are regular, is a matter between the parties to the main action.
APPEAL from an order made at Fall Term, 1882, of DURHAM (102) Superior Court, by Shipp, J.
The plaintiffs commenced this action on the 3rd of July, 1882, returnable to fall term of the superior court, and on the same day procured a warrant of attachment to issue, which was levied upon a certain fund belonging to the defendants in the hands of R. C., Strudwick.
On the 27th day of the same month, C., W. Thorn Co., and others, creditors of the defendants, recovered judgments against them in a justice's court, and immediately had them docketed, and instituted proceedings supplementary to execution, and on the 5th day of August obtained an order from the clerk of the superior court appointing a receiver with instructions to take the fund then in Strudwick's hands, subject, however, to all prior liens.
At the return term of this action, those judgment creditors, together with the receiver, filed their petition asking to be allowed to intervene in the action, and thereupon the judge directed them to be made parties, with leave to prepare such an issue as would "present the special lien claimed by the petitioners," and in the meantime instructing Strudwick to retain the fund in his hands until the further order of the court, and the plaintiffs appealed.
Messrs. Roulhac Fuller, for plaintiffs.
No counsel contra.
We understand the judge's order to mean that the intervening parties should be admitted, not to defend the main action between the plaintiffs and defendants, but to present an issue between themselves and the plaintiffs as the superior rights to the fund in controversy.
Thus understood, the decision in Toms v. Warson, 66 N.C. 417, governs the case. That was an attachment levied on land. Third parties claiming to own the land petitioned to be admitted as parties to defend the action; and it was held that they had no (103) right to intervene in the original action between the plaintiff and defendant, so as to contest the former's right to recover, for as to that, they were strangers, and could neither be benefited nor prejudiced by the result. But, that upon proper allegations of an interest in the property attached, they were entitled to intervene so far as to make up a collateral issued as to the title. See also Sims v. Goettle, 82 N.C. 268.
By parity of reasoning, we should hold that third parties, so intervening, could not be heard to object to the regularity of the attachment proceedings — that being a matter between the parties to the main action; and this objection the defendant might waive, and no one else can make for him. But here, the order of the court restricts them to a single collateral issue as to the better lien on the fund; and consequently there is no error.
No error. Affirmed.
Cited: Cook v. Mining Co., 114 N.C. 620; Bank v. Furniture Co., 120 N.C. 477; Cotton Mills v. Weil, 129 N.C. 455; Forbis v. Lumber Co., 165 N.C. 406; Patrick v. Baker, 180 N.C. 592; Feed Co. v. Feed Co., 182 N.C. 691; Temple v. LaBerge, 184 N.C. 254.