{
  "id": 8549503,
  "name": "JOHN D. HISCOX v. DON B. SHEA and Wife, RUTH SHEA",
  "name_abbreviation": "Hiscox v. Shea",
  "decision_date": "1970-05-06",
  "docket_number": "No. 7030SC22",
  "first_page": "90",
  "last_page": "92",
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      "cite": "8 N.C. App. 90"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "14 S.E. 2d 30",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "219 N.C. 369",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8623822
      ],
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      "case_paths": [
        "/nc/219/0369-01"
      ]
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  "last_updated": "2023-07-14T18:36:14.673474+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "BkocK and Britt, JJ., concur."
    ],
    "parties": [
      "JOHN D. HISCOX v. DON B. SHEA and Wife, RUTH SHEA"
    ],
    "opinions": [
      {
        "text": "Geaham, J.\nG.S. 1-440.36 provides as follows:\n\u201c(a) At any time before judgment in the principal action, a defendant whose property has been attached may specially or generally appear and move, either before the clerk or the judge, to dissolve the order of attachment.\n(b) When the defect alleged as grounds for the motion appears upon the face of the record, no issues of fact arise, and the motion is heard and determined upon the record.\n(c) When the defect alleged does not appear upon the face of the record, the motion is heard and determined upon the affidavits filed by the plaintiff and the defendant, unless prior to the actual commencement of the hearing, a jury trial is demanded in writing by the plaintiff or the defendant. Either the clerk or the judge hearing and determining the motion to dissolve the order of attachment shall find the facts upon which his ruling thereon is based. . . .\u201d (Emphasis added).\nBoth the hearing before the clerk and the subsequent hearing before the judge were upon affidavits. Facts alleged in the affidavits were sufficient to support findings favorable to either the plaintiff or the defendants with respect to issues of fact raised by the motion. The judge made no findings as required by G.S. 1-440.36 (c) and as requested by defendants but simply stated in his order that after considering the affidavits and pleadings in the file the court was of the opinion that the order of the clerk should be vacated and overruled.\nIt is impossible for us to tell from the order on what theory the judge was proceeding in overruling the clerk\u2019s order. In our opinion the clerk\u2019s findings were supported by competent evidence and they support his conclusion that no valid grounds existed for the-order of attachment. However, the judge had concurrent jurisdiction-with the clerk to determine the matter. Consequently, the judge was not limited to determining whether or not there was competent evidence to support the findings of the clerk but could consider the evidence de novo and hear evidence not before the clerk. Cody v. Hovey, 219 N.C. 369, 14 S.E. 2d 30; 1 McIntosh, N.C. Practice and Procedure 2d, \u00a7 164. We assume the court considered the evidence de novo and determined the facts to be different from those found by the clerk. But the judge\u2019s findings are not set forth in his order or otherwise made a part of the. record, and this case must therefore be remanded.\nRemanded.\nBkocK and Britt, JJ., concur.",
        "type": "majority",
        "author": "Geaham, J."
      }
    ],
    "attorneys": [
      "Van Winkle, Buck, Wall, Starnes and Hyde by Herbert L. Hyde for defendant appellants.",
      "No appearance of counsel for plaintiff."
    ],
    "corrections": "",
    "head_matter": "JOHN D. HISCOX v. DON B. SHEA and Wife, RUTH SHEA\nNo. 7030SC22\n(Filed 6 May 1970)\n1. Attachment \u00a7 9\u2014 dissolution of attachment \u2014 findings of fact\nOn appeal to the superior court from an order of the clerk dissolving an attachment, failure of the judge to make findings of fact in his order which vacated and overruled the clerk\u2019s order was erroneous; and the case must he remanded. G.S. 1-410.36.\n3. Attachment \u00a7\u00a7 1, 9; Courts \u00a7 6\u2014 dissolution of attachment \u2014 concurrent jurisdiction of clerk and judge\nOn motion to dissolve an attachment, the judge of superior court has concurrent jurisdiction With the clerk of superior court to determine the matter; and consequently the judge is not limited to determining whether or not there was competent evidence to support the findings of the clerk but he can consider the evidence de novo and hear evidence not before the clerk.\nAppeal by defendants from order of Bryson, J., dated 6 September 1969, in Chambers in SwaiN County.\nPlaintiff instituted a civil action in Macon County on 26 June 1969 seeking $8,000 in damages for an alleged breach by defendants of a contract to purchase 8.2 acres of land from plaintiff. An order of attachment based on plaintiff\u2019s affidavit was issued ancillary to the action and certain of defendants\u2019 property was attached.\nOn 7 July 1969 defendants moved before the clerk and pursuant to G.S. 1-440.36 that the order of attachment be dissolved. The motion was heard on 4 August 1969 and based upon appropriate findings and conclusions the clerk ordered the attachment dissolved. Plaintiff appealed to the judge of superior court. On 6 September 1969 a hearing was held before the Resident Superior Court Judge for the Thirtieth Judicial District in Chambers at Bryson City. The judge entered a summary order vacating the clerk\u2019s order and defendants appealed.\nVan Winkle, Buck, Wall, Starnes and Hyde by Herbert L. Hyde for defendant appellants.\nNo appearance of counsel for plaintiff."
  },
  "file_name": "0090-01",
  "first_page_order": 114,
  "last_page_order": 116
}