Opinion
(Filed 20 September, 1933.)
Claim and Delivery C c — Motion for sale of property pending trial held addressed to discretion of court.
Plaintiff took possession of certain mules from defendant by claim and delivery and the execution of the statutory bond, and moved that the mules be sold and the proceeds of sale held pending the determination of the issue of title between the parties. Held, even if the court had the power to order the sale of the mules over defendant's objection, the motion was addressed to the discretion of the court, and the court's refusal of the motion is not reviewable.
APPEAL by plaintiff from Barnhill, J., at May Term, 1933, of BEAUFORT. Affirmed.
Ward Grimes for plaintiff.
W. A. Thompson for defendant.
This is an action to recover from the defendant possession of two mules which had been sold by the plaintiff to the defendant, and which had been conveyed by the defendant to the plaintiff by a chattel mortgage to secure a note for the balance due on the purchase price for said mules. In his answer, the defendant denied that plaintiff was entitled to recover the possession of the said mules.
At the date of the commencement of the action, the mules described in the complaint were taken from the possession of the defendant by the sheriff of Beaufort County, under a writ of claim and delivery, and delivered to the plaintiff, who had filed in the action the undertaking required by statute.
While the action was pending for trial, the plaintiff moved for an order that the mules be sold by a commissioner appointed by the court, and that the proceeds of the sale be held awaiting the trial of the issues raised by the pleadings. This motion was denied, and plaintiff excepted and appealed to the Supreme Court.
There was no error in the refusal of the judge to allow plaintiff's motion.
Even if the judge had the power to allow the motion, over the objection of defendant, its exercise was within the discretion of the judge and for that reason is not subject to review by this Court on plaintiff's appeal. The appeal must be
Dismissed.