#### COHARIE LUMBER COMPANY v. W. C. BUHMANN et al.

(Filed 9 October, 1912.)

1. Appeal and Error — Order Vacating Attachment — Findings of Facts.

The Superior Court judge is not required to set out the facts upon which he has vacated an attachment levied on defendant’s property, unless the party appealing, and complaining of the ruling of law, requests him to find the facts necessary to give him the benefit of his exceptions. •

2. Same — Presumptions.

On appeal, it will be presumed that the Superior Court judge found facts sufficient to support his order vacating an attachment on the debtor’s property, when they do not appear of record; and any facts, so appearing, .found by him, are not reviewable.

3. Appeal and Error — Order Vacating Attachment — Debtor’s Possession — Undertaking—Interpretation of Statutes.

When an attachment on the debtor’s property has been vacated by the Superior Court judge, the defendant should not be required to give the undertaking under Revisal, secs. 774 and 775, to regain possession of the property.

Appeal by plaintiff from 0. H. Allen, J., at May Term, 1912, of New HaNoveb.

The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.

Joseph W. Little and1 John D. Bellamy■ for plaintiff.

Davis & Davis for defendant.

*386"WalKER, J.

Tbis is an action to recover $3,000, tbe penalty of a bond given by W. C. Bubmann as principal and F. G-. Bub-mann as surety, for tbe faithful performance, by W. C. Bub-mann, of a certain contract between bim and plaintiff, and for tbe further recovery of tbe amount of a note for $2,500, made by W. C. Bubmann and indorsed by E. Gr. Bubmann, and deposited with plaintiff as collateral to secure tbe payment of three promissory notes, each for $500, given by W. C. Bub-mann to plaintiff, and of an open account for money advanced and supplies furnished by plaintiff to tbe said W. C. Bubmann. Warrants of attachment were issued and levied on property of defendants in tbis State. They were based upon affidavits which alleged that W. C. Bubmann is not a resident of tbe State and that E. Gf. Bubmann, though alleged to be a nonresident, bad secreted himself in tbe State with tbe purpose of avoiding tbe service of process, and bad assigned, disposed of, and secreted, or was about to assign, dispose of, or secrete bis property in tbis State, for tbe purpose of defrauding bis creditors. Tbe case was beard in tbe court below, after special appearance by defendants, upon a motion to vacate tbe warrants of attachment and tbe affidavits filed by tbe parties. Tbe court ordered that the attachments be vacated, but without setting out tbe facts upon which' tbe order was based.

Tbe judge was not required to state bis findings of fact in tbe oi’der or otherwise, unless requested by tbe plaintiff to.do so. Tbis has been thoroughly settled by tbe authorities, and notably in Millhiser v. Balsley, 106 N. C., 433. As there seems to be some misapprehension upon tbis subject, we reproduce what is said by Chief Justice Merrimon in that case: “It was not necessary, in tbis case, that tbe court should set forth in tbe judgment vacating tbe warrant of attachment its findings of facts on which tbe same was founded. Tbe statute does not so require, and to do so would more or less encumber tbe record without serving any necessary or useful purpose, unless a party should desire to assign error. In tbis and like cases it is tbe province of tbe judge in tbe court below to bear tbe evidence, usually produced before bim in tbe form of affidavits, find tbe *387facts, and apply tbe law arising thereupon. Pasour v. Lineberger, 90 N. C., 159, and the cases there cited. If a party should complain that the court erred in so applying the law,' then he should assign error and ask the court to state its findings of the material facts in the record, so that he might have the benefit of his exceptions, on appeal to this Court. In that case, it would be error if the court should fail or refuse to so state its findings of fact, and the law arising upon the same. Such practice affords the. complaining party reasonable opportunity to have errors of law, arising in the disposition of incidental and ancillary matters in the action, corrected by this Court, while in very many cases it lessens the labor of the court below, expedites proceedings in the action, and saves costs.”

So we said in Pharr v. R. R., 132 N. C., 418:

“This Court cannot pass upon the affidavits, but in order to entitle the moving party to a review here of the ruling below, -the facts must be found and spread upon the record, and the court must always find the facts when requested to do so,” citing Smith v. Whitten, 117 N. C., 389; Albertson v. Terry, 108 N. C., 75.

Where the facts are not set out in the record, we will presume that the judge found such facts as would support the order, or judgment, as the case may be. We do not presume that error was committed by the court. It must be shown by the party alleging it. Pharr v. R. R., supra; S. v. Taylor, 118 N. C., 1262; Albertson v. Terry, supra. Likewise, the findings of fact upon such a motion are not reviewable here, but are conclusive upon us. Hale v. Richardson, 89 N. C., 62; Taylor v. Pope, 106 N. C., 267; Burke v. Turner, 85 N. C., 500; Harris v. Sneeden, 101 N. C., 273; Love v. Moody, 68 N. C., 200; Travers v. Deaton, 107 N. C., 502. This rule, of course, is subject to the qualification that a party may except to the findings of fact upon the ground that there is no evidence to support them, but the exception must be made in apt time and in the proper way. Travers v. Deaton, supra. Assuming that the judge found such facts as warranted the order, and being concluded by them, as much so as if they had been fully set out in *388•tbe order, tbe necessary conclusion is tbat there was no error in vacating tbe attachment, as there is no foundation for it to rest upon.

Tbe learned counsel for plaintiff suggested in argument, and this is one of bis assignments of error, tbat tbe defendants should have been required by tbe court to give an undertaking, under Revisal, secs. 774 and 775; but we do not think those sections will bear such a construction. They were intended to apply where tbe defendant comes in and moves to discharge tbe property from tbe attachment, upon giving tbe required security and without regard to tbe validity of tbe attachment.. They are rather predicated upon tbe idea tbat tbe attachment was properly issued for one or more of tbe causes prescribed in tbe statute, and tbe defendant appears, submits himself to tbe jurisdiction of tbe court, and agrees to file an undertaking, with sufficient surety, in lieu of tbe attached property, and conditioned to pay tbe debt if tbe plaintiff succeeds in tbe action. A cursory reading of those sections will disclose this as tbe purpose of their enactment. It was not supposed tbat plaintiff should be entitled to security from tbe defendant if tbe attachment is invalid or was not properly sued out. Tbe attachment then fails and tbe right to security is extinguished. It is said in 3 Enc. of PI. and Pr., at p. 77, citing cases in tbe notes: “Attachments may be dissolved by traversing in tbe motion for dissolution tbe facts alleged in tbe affidavit as grounds for the attachment, by pleading some irregularity of a fatal character in tbe proceedings, or by giving bond to tbe sheriff to pay tbe debt, thereby i*eleasing tbe property”; and at page 84: “It is generally provided by statute tbat tbe attached property may be discharged from tbe attachment lien by executing in favor of tbe plaintiff, or, in some States, tbe officer who executes tbe attachment, a bond, with sufficient security, conditioned upon tbe faithful performance of whatever judgment shall be rendered in tbe action.” But tbe point is determined in Bear v. Cohen, 65 N. C., 511, where it is said: “An attachment or other provisional remedy will be vacated without any undertaking by tbe defendant, by a judge, if on its face it appears *389to have been issued irregularly, or for a cause insufficient in law, or false in fact.” Rowles v. Hoare, 61 Barbour (N. Y.), 266.

The rule is well stated in Bates v. Killian, 17 S. C., 553: “Attachments may be dissolved or defeated upon two grounds: (1st) "Where some irregularity of a fatal character appears on the face of the proceedings, and (2d) because of the fact that the allegations upon which it may issue are untrue. The dissolution in either case may be had upon motion, the first being made upon the papers, and the second upon affidavits as to matters dehors the record. These causes go to the root of the attachment, especially in the last class of cases, and when they exist .the effect of their interposition is not simply to release the property, but to entirely vacate and set aside the attachment proceedings. Besides this remedy, in cases where the attachment has been irregularly issued, or issued without warrant of law, section 265 of The Code, supra, provides for the release of the property attached, where the attachment has been legally issued and there is no objection as to its regularity or want of observance of proper form, the effect of which provision, when adopted by the defendant, is to convert the action from one in rem to one in personam, with security by the defendant for the payment of the debt. This is done by permitting the defendant to give bond for the payment of the debt in the event that the plaintiff's action succeeds, the purpose of an attachment being to obtain security for the debt by .securing a lien on property. The bond provided for is substituted in the place of this lien and the property is released.” When there is any fatal defect in the attachment proceedings, parties would doubtless avail themselves of the chance offered to attack the process and vacate the same, thereby releasing the property from the lien, without any further liability. The relief provided by Revisa!, secs. 774 and 775, was without doubt intended primarily to provide for those cases where the attachments are regular and valid, and yet where it would be a hardship to the debtor if he is deprived of the use and enjoyment of his property during the pendency of the action. This remedy respects the interests of both creditor and debtor, as it gives the creditor *390a security in tbe form of an undertaking, wbicb is, by tbe law, considered as reliable as tbe lien displaced by it, and an adequate protection, while tbe debtor is restored to tbe possession of bis property. Bates v. Killian, supra.

It appears that an undertaking was given to tbe sheriff for tbe release of tbe property, but what effect it will ultimately have in securing tbe plaintiff’s claim, if established, is not now before us for decision.

No error.