{
  "id": 8617055,
  "name": "UNAKA AND CITY NATIONAL BANK OF JOHNSTON CITY, et al., v. JOHN P. LEWIS et al.",
  "name_abbreviation": "Unaka & City National Bank v. Lewis",
  "decision_date": "1932-12-07",
  "docket_number": "",
  "first_page": "644",
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  "last_updated": "2023-07-14T19:49:40.426370+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "UNAKA AND CITY NATIONAL BANK OF JOHNSTON CITY, et al., v. JOHN P. LEWIS et al."
    ],
    "opinions": [
      {
        "text": "Stact, C. J.\nPlaintiff sued the defendants, John P. Lewis and Madge M. Lewis, for debt, asked that a deed be set aside as fraudulent, and attached certain personal property including the \u201cMajor Donnelly horse.\u201d It was contended by Mrs. Lewis on the trial that she held said horse only as bailee. Both sides appealed from the verdict and judgment entered at the September Term, 1930, Watauga Superior Court, which was affirmed 27 June, 1931. Bank v. Lewis, 201 N. C., 148, 159 S. E., 312.\nAt the next succeeding term following affirmance of the judgment on appeal, J. C. Donnelly was allowed to come in as intervener, over objection of plaintiff, and set up title to the \u201cMajor Donnelly horse,\u201d which was still in the possession of the sheriff or in custodia legis. Glenn v. Bank, 84 N. C., 631. This was a matter resting in the sound discretion of the trial court, if it be conceded the intervener was not entitled to come in as a matter of right. C. S., 460 and 840; Sanders v. May, 173 N. C., 47, 91 S. E., 526; Washington v. Hodges, 200 N. C., 364, 15 S. E., 626.\nSpeaking to the subject in Dodson v. Bush, 4 N. C., 18, the Court said: \u201cNo time is limited by the act of Assembly when the party claiming the property attached shall interplead. We think he may do so on the return of the writ of attachment, or at any time afterwards, so that it is done before final judgment in the cause.\u201d This was quoted with approval in Evans v. Transportation Co., 50 N. C., 332.\nIt follows, therefore, as the court had the discretion to allow the in-tervener to come in and set up his claim to a part of the property attached, which was exercised in intervener\u2019s favor, the former judgment in the action could not be pleaded by the plaintiff as res judicata. 34 C. J., 1024. The case of Ladany v. Assad, 91 Conn., 316, 99 Atl., 762, cited and relied upon by plaintiff, is not controlling, for there the claimant undertook to assert his right in an independent action rather than by intervention in the original cause as the intervener has done here.\nAs no reversible error has been made to appear, the verdict and judgment will be upheld.\nNo error.",
        "type": "majority",
        "author": "Stact, C. J."
      }
    ],
    "attorneys": [
      "T. G. Bowie for plaintiffs.",
      "Ervin & Ervin for intervener."
    ],
    "corrections": "",
    "head_matter": "UNAKA AND CITY NATIONAL BANK OF JOHNSTON CITY, et al., v. JOHN P. LEWIS et al.\n(Filed 7 December, 1932.)\nAttachment H b \u2014 Court has discretionary power to allow intervener to claim property while it is still in custodia legis.\nWhere the plaintiff sues the defendant for debt, asks that a deed be set aside as fraudulent, and attaches certain personal property, and both parties appeal from the judgment: Held,, the trial court has the power if not as a matter of right, then as a matter in his discretion, to allow a claimant of certain of the personal property to intervene at the next succeeding term of the court after affirmance of the judgment on appeal, the personal property claimed still being in custodia legis, and the judgment that the personal property claimed by the intervener was the property of the defendant may not be pleaded as res judicata in bar of the intervener\u2019s claim. O. S., 460, 840.\nAppeal by plaintiff from Schenck, J., at June Special Term, 1932, of Watauga.\nCivil action for debts, and to bave deed set aside as fraudulent, with ancillary remedy of attachment.\nIntervention by J. 0. Donnelly who set up title to a part of the property attached, to wit, the \u201cMajor Donnelly horse.\u201d\nFrom a verdict and judgment in favor of the intervener, plaintiff appeals, assigning errors.\nT. G. Bowie for plaintiffs.\nErvin & Ervin for intervener."
  },
  "file_name": "0644-01",
  "first_page_order": 712,
  "last_page_order": 714
}