Farmers Federation, Inc. v. Lockman

Adams, J.

Tbe plaintiff brought suit to recover a judgment for $490.09, and on 24 July, 1929, caused a warrant of attachment to be levied on personal property owned by the defendant. On 29 August, 1929, the defendant filed an affidavit and made a motion to vacate the warrant of attachment. The motion was denied first by the clerk and afterwards, on the defendant’s appeal, by Judge Schenck, who found the following facts:

1. The defendant is a nonresident of the State of North Carolina, it being admitted that the defendant is a resident of the State of Florida, and was at the time of the issuing of the summons and warrant of attachment in this cause, and is now, a resident of the State of Florida..

2. The defendant is the owner of both real and personal property located in Henderson County, some personal property of the defendant being attached in this cause, but no real estate is attached.

3. At the time of the issuing of the summons in this cause and the warrant of attachment the defendant was occupying his house upon his property in Henderson County, as well as since the 10th day of July, 1929, and that summons and warrant of attachment were personally served upon the defendant while so occupying his house on said property, on 24 July, 1929, and tbat said defendant is now occupying bis bouse on said property witb bis family.

4. Defendant bas filed answer in tbis cause, entering a special appearance as to tbe warrant of attachment.

A warrant of attachment against tbe property of a defendant may be granted when the action is instituted to recover a judgment for breach of contract and tbe defendant is a nonresident of tbe State. C. S., 798, 799. Tbe defendant excepted to tbe finding tbat be is a nonresident of North Carolina on tbe ground tbat it is not supported by tbe evidence. We think tbe finding is supported by tbe evidence. Tbe warrant recites as appearing by tbe plaintiff’s affidavit tbat tbe defendant is a nonresident of tbe State of North Carolina, and in tbe complaint it is alleged tbat tbe defendant is a resident of tbe State of Florida and tbe city of West Palm Beach. These allegations are not denied either in tbe answer or in tbe affidavit of tbe defendant. Tbe statement tbat be owns a farm in Henderson County and lives there a part of tbe time is not inconsistent witb tbe fact that be is not a resident of tbe State. Tbe judge finds upon sufficient evidence tbat tbe defendant is a nonresident of tbis State and. tbat it is admitted tbat be is a resident of tbe State of Florida. Authority need not be cited to sustain tbe proposition tbat tbis finding is conclusive. Judgment

Affirmed.