Opinion
(Filed 10 June, 1902.)
Actions — Consolidation.
Where two cases are on trial docket and motion to dismiss one should have been allowed, it was error to consolidate the two actions.
ACTION by the Willard Manufacturing Company against Geo. H. Tirney Co., heard by Neal, J., at January Term, 1902, of DURHAM. From a judgment for the plaintiff, the defendant appealed.
Boone, Bryant Biggs for plaintiff.
Busbee Busbee for defendant.
The facts in this case are substantially the same as those stated in Mfg. Co. v. Bank, ante, 609. The plaintiff alleges that the defendant, Geo. H. Tirney Co., is liable to it in the sum of $285.92, upon a breach of contract in the purchase of cotton. The defendant being a nonresident of the State of North Carolina, (612) plaintiff commenced an action in the Superior Court of Durham, sued out an attachment and caused it to be levied on fifty bales of cotton alleged by plaintiff to belong to defendant. The National Bank intervened in this action and claimed that the cotton so attached belonged to it. The plaintiff then commenced another action against said National Bank, sued out another attachment and caused it to be levied on the same fifty bales of cotton, upon the allegation that said cotton belonged to the bank. Thus it was that both actions stood upon the docket of the Superior Court of Durham at the same time. When the bank moved to dismiss the action against it and to discharge the attachment, the plaintiff resisted this motion of the bank and moved to consolidate this action with the action against the bank. The bank's motion was overruled and the plaintiff's motion was allowed and an order made consolidating the two actions. Defendants excepted and appealed.
We have seen in Mfg. Co. v. Bank, ante, 609, that the plaintiff could not proceed against the bank by attachment, and as it could not do that and as that action and attachment should have been dismissed (Mfg. Co. v. Bank, supra), it was error to consolidate that action with this. But when that action is dismissed it will leave this action as it originally stood, as a suit against Geo. H. Tirney Co. And while the plaintiff could not attach this cotton as the property of a National bank, we see no reason why it may not intervene and claim that the cotton attached as the property of Geo. H. Tirney Co. belongs to it. Cotton Mills v. Weil, 129 N.C. 452. But its intervening does not make it a party to the action between the plaintiff and Geo. H. Tirney Co. further than to claim that the cotton attached belongs to it. This is the only issue involved so far as the intervener is concerned, and the affirmative of this issue is upon it. If it is not the owner of the cotton it has no further interest in the action. Cotton Mills v. Weil, supra; Bank (613) v. Furniture Co., 120 N.C. 475.
It was error to consolidate the action against the bank with this action; but this action will be allowed to stand upon the docket and the plaintiff will be entitled to the same rights as if no order of consolidation had been made.
Error.