Bowers v. . Beatty

Separate actions by B. F. Bowers and Bayview Company, creditors of R. R. Beatty, to recover on their respective claims, the one invoking the aid of attachment on a merry-go-round and swing, the other the ancillary proceeding in claim and delivery, consolidated by consent for trial, and, in the consolidated action, one Geo. A. Wilson intervened and set up claim to the property attached and seized, by virtue of a prior chattel mortgage executed and registered in Chesterfield County, S.C., and also registered in Beaufort County, N.C.

The jury returned the following verdict:

"1. In what amount, if any, is the defendant indebted to the plaintiff, Bayview Company? Answer: $280.00 (by consent).

"2. In what amount, if any, is the defendant indebted to the plaintiff, B. F. Bowers? Answer: $561.45 (by consent), with interest from 1 July, 1931.

"3. Has the intervener, Geo. A. Wilson, a chattel mortgage on the merry-go-round in question, as alleged in the interplea? Answer: Yes.

"4. If so, what amount is still owing said Geo. A. Wilson on his chattel mortgage? Answer: $1,700.00 and interest.

"5. Has the plaintiff, Bayview Company, a verbal mortgage on the merry-go-round and swing, as alleged in the complaint? Answer: No.

"6. Has the plaintiff, B. F. Bowers, a verbal mortgage on the merry-go-round and swing, as alleged in the complaint? Answer: No.

"7. Is the defendant, R. R. Beatty, a nonresident of the State of North Carolina, and was he such on 30 July, 1930? Answer: No.

"8. What was the value of the merry-go-round on 15 July, 1930. Answer: $900.00 (by consent)."

Judgment on the verdict, from which the plaintiffs appeal, assigning errors. Conceding, without deciding, that, under authority of Odum v. Clark,146 N.C. 544, 60 S.E. 513, and the evidence appearing of record, the court erroneously directed an answer to the fifth issue, nevertheless, unless there were error also in respect to the third or fourth issue, which has not been made to appear, a new trial would avail the plaintiffs nothing.

The validity of the intervener's mortgage, duly executed and registered in Chesterfield County, S.C., and also registered in Beaufort County, N.C. is supported by what is said in Hornthal v. Burwell, 109 N.C. 10,13 S.E. 721, and 5 R. C. L., 399.

No error.