Mica Industries, Inc. v. Penland

107 S.E.2d 120 (1959) 249 N.C. 602

MICA INDUSTRIES, INC.
v.
L. S. PENLAND and J. Harry Thomas, Sheriff of Macon County, N. C.

No. 19.

Supreme Court of North Carolina.

February 25, 1959.

Jones & Jones, Franklin, and Ward & Bennett, Asheville, for plaintiff, appellant.

Marcellus Buchanan, Sylva, and J. H. Stockton, Franklin, for defendants, appellees.

BOBBITT, Justice.

The only question presented is whether the court erred in sustaining the demurrer to amended complaint. (The judgment did not dissolve the restraining order, nor did it dismiss the action.)

Plaintiff does not attack the judgment or the execution. But the judgment is against Minerals Processing Company, not against plaintiff; and the execution authorizes the sheriff to levy on and to sell property of Minerals Processing Company, not property of plaintiff.

Only property of the judgment debtor may be levied on and sold under execution. G.S. § 1-315. A levy made on property of a person other than the judgment debtor constitutes a trespass. 33 C.J.S. Executions § 453; 21 Am.Jur., Executions, § 138.

If, as alleged, the sheriff wrongfully levied on, took possession of and refused to surrender property owned solely by plaintiff, what legal remedies were available to plaintiff?

1. Plaintiff was entitled to recover its property from the person or persons in wrongful possession thereof; and, in an action therefor, the ancillary remedy of claim and delivery, G.S. § 1-472 et seq., was available. Jones v. Ward, 77 N.C. 337; Churchill v. Lee, 77 N.C. 341; Mitchell v. Sims, 124 N.C. 411, 32 S.E. 735; Bowen v. King, 146 N.C. 385, 392, 59 S.E. 1044.

In Jones v. Ward, supra, the basis of decision is well stated in the headnote as follows: "An action for claim and delivery of personal property can be maintained by the owner against an officer taking the same under an execution against a third person."

While it did not seek immediate possession under claim and delivery proceedings, it is noted that plaintiff alleged that the property had not been seized under an execution or attachment "against the property of the plaintiff." G.S. § 1-473(4).

2. Plaintiff was entitled to recover damages, if any, sustained by plaintiff on account of the wrongful seizure and detention of its property. Levering v. Smith, 115 N.C. 385, 20 S.E. 446; Martin v. Buffaloe, 128 N.C. 305, 38 S.E. 902; Bowen v. King, supra; 80 C.J.S. Sheriffs and Constables §§ 146, 147; 47 Am.Jur., Sheriffs, Police and Constables §§ 44, 48.

Moreover, plaintiff was entitled, in a single action, to recover both possession and damages. G.S. § 1-230; Bowen v. King, supra.

Whether plaintiff, a stranger to Penland's action against Minerals Processing Company, could have intervened therein, is not before us. In this connection, see 33 C.J.S. Executions § 165.

The fact that Penland was the judgment creditor, standing alone, would not impose liability on account of the sheriff's wrongful seizure and detention of plaintiff's property. Draper v. Buxton, 90 N.C. 182. However, as stated in 33 C.J.S. Executions § 456: "All persons who have anything to do with the wrongful issuance or levy of an execution, including persons who procure, direct, or assist in the commission of the wrongful act by the officer, are liable to the person injured thereby. Even a stranger or person not a party to the suit who officiously directs an officer in making a wrongful levy, or who accompanies an officer and assists him in the commission of the wrongful act, is equally liable with the officer for the injury sustained." If, as alleged, Penland induced the sheriff to commit the alleged wrongful acts, he is equally liable with the sheriff for damages sustained by plaintiff on account thereof. 21 Am.Jur., Executions § 641; Annotation, 91 A.L.R. 922 et seq., and supplemental decisions.

Upon these legal principles, the amended complaint states facts sufficient to constitute a cause of action.

Defendants' contention that the amended complaint is demurrable because it introduced "a new, separate and distinct cause of action," is without merit.

Whether, strictly speaking, plaintiff, by alleging that it had been damaged by defendants' alleged wrongful acts, thereby introduced a new cause of action, need not be discussed; for, absent the bar of an applicable statute of limitations, it was permissible under G.S. § 1-163 to allow plaintiff to introduce a new cause of action by way of amendment if the facts constituting the new cause of action arise out of or are connected with the transactions upon which the original complaint is based. Stamey v. Rutherfordton Electric Membership Corp., 249 N.C. 90, 93, 105 S.E.2d 282; Perkins v. Langdon, 233 N.C. 240, 63 S.E.2d 565. Here, plaintiff's so-called new cause of action is based primarily on the identical facts originally alleged.

Finally, we consider defendants' contention that it appears on the face of the complaint that plaintiff did not on March 15, 1958, have the legal capacity to sue. This contention is directed to the allegations of paragraph 1 of the original complaint, viz.:

"1. That the plaintiff is a corporation duly chartered, organized and existing under the laws of the State of North Carolina, and that, while its authority to carry on its regular business as contemplated by its charter was suspended temporarily on the 10th day of December, 1957, this action is instituted in the name of said corporation within two years from the date of its suspension by authority duly given by its directors for the purpose of preserving the assets of said corporation."

While the quoted allegations do not so state, we accept, for present purposes, defendants' contention that it appears therefrom that plaintiff's charter was temporarily suspended by the Secretary of State under G.S. § 105-230. Whether plaintiff's charter has been restored as provided in G.S. § 105-232 does not appear. We are concerned only with plaintiff's status when this action was commenced.

Upon the present record, we are not disposed to undertake to define precisely the legal effect of a temporary suspension of charter under G.S. § 105-230. Suffice to say, we are of the opinion and hold that the facts alleged, considered in the light most favorable to plaintiff, do not disclose that plaintiff did not have the legal capacity on March 15, 1958, to institute and prosecute this action. G.S. § 55-114(a) (4), enacted by Ch. 1371, Session Laws of 1955, effective July 1, 1957.

We are not presently concerned with whether plaintiff can establish the facts alleged. For the purpose of testing the sufficiency of the amended complaint, the facts alleged are deemed admitted by the demurrer.

For the reasons stated the judgment sustaining demurrer to amended complaint is reversed.

Reversed.