J. L. Thompson Co. v. Pope

The plaintiff brings this action in the nature of a creditor's bill, and alleges that the defendants have disposed of certain real estate, worth $20,000, with intent to defraud their creditors. Plaintiff's claim is for merchandise and supplies furnished, amounting in value to approximately $1,561.13. The correctness of this account is denied. At the instance of the plaintiff a temporary receiver was appointed, and the defendants restrained from disposing of the crops and certain personal property. Upon the return of said motion the receiver was discharged, and the restraining order continued to the hearing. The plaintiff appealed, because his Honor vacated the receivership and ordered the receiver discharged. We fail to see wherein the plaintiff's rights have been prejudiced by this action. True, it is stated in the record that the restraining order was also dissolved, but this does not so appear from the judgment.

The following is taken from the statement of case on appeal: "At the hearing the plaintiff introduced and relied upon the amended complaint and affidavit of J. L. Thompson Company in support of its motion, and the defendants, in support of their motion to vacate, relied upon the affidavit of Hannibal Pope, and additional affidavits as to the value of the land described in the complaint, which valuation was alleged by the defendants and admitted by the plaintiff to be approximately $20,000."

It would hardly seem commensurate with the rights of the parties to have a receiver appointed to take charge of property worth approximately $20,000, where the plaintiff's claim, in addition to being disputed, amounts to no more than $1,561.13, unless there were other and additional allegations to those appearing on the instant record. "The appointment of a receiver pendente lite is not a matter of strict right, but rests in the sound discretion of the court, and such order will not be made unless from all the circumstances it appears that (125) greater injury will ensue from leaving the property with its present possessors than from its removal into the custody of such officer, and in this regard the interest of both parties will be considered, and the dangers of loss or injury must be imminent." Hanna v. Hanna,89 N.C. 68.

No sufficient reason for disturbing the judgment has been assigned.

Affirmed.

Cited: Jones v. Jones, 187 N.C. 593; Ellington v. Currie, 193 N.C. 612;Woodall v. Bank, 201 N.C. 432.