Porter v. Citizens Bank of Warrenton

105 S.E.2d 669 (1958)

249 N.C. 173

Margaret Fuller PORTER v. The CITIZENS BANK OF WARRENTON, Inc., Mrs. Alice Southerland, trading as The Style Shop, E. E. Gillam, trading as Gillam Auto Company, and J. B. Martin.

No. 394.

Supreme Court of North Carolina.

November 19, 1958.

*673 Respondent J. B. Martin excepted and appealed.

Banzet & Banzet, Warrenton, for petitioner, appellee.

William W. Taylor, Jr., and Charles T. Johnson, Jr., Warrenton, for respondent J. B. Martin, appellant.

BOBBITT, Justice.

It was expressly adjudged that the judgment obtained by respondent J. B. Martin, pursuant to attachment proceedings, was a lien on George S. Comer's share of the $9,382.34 deposit. Whether petitioner, by virtue of Judge Hall's order of June 4, 1957, entered in the separate action for alimony without divorce, has a lien thereon superior to Martin's lien, is the only question discussed in the briefs and on oral argument.

The stipulated facts set forth in paragraphs numbered 1, 2, 3 and 4 of Judge Clark's judgment provide our only information relating to the separate action for alimony without divorce entitled "Margaret Fuller Comer v. George S. Comer." Whether jurisdiction therein was obtained by personal service on defendant or otherwise is not disclosed. Too, the record is silent as to whether George S. Comer answered the complaint or otherwise appeared in person or by counsel.

Judge Hall's order of June 4, 1957, was entered, on motion of Margaret Fuller Comer, after the foreclosure sale had been advertised by Frank Banzet, Trustee, but prior to the date of sale. Whatever the provisions of Judge Hobgood's prior order, the order of Judge Hall provided that "any person, firm or corporation having custody or control over" the share in the surplus, after payment of the secured debt and foreclosure expenses, to which George S. Comer would otherwise be entitled, "shall pay to the plaintiff the sum of $837 and shall pay to the firm of Banzet & Banzet, attorneys, the sum of $450 and thereafter to pay to plaintiff the sum of $354 on the 29th day of each month hereafter commencing on the 29th day of June 1957, to be reduced by $75.00 per month so long as the plaintiff shall occupy the premises * * *" Whether the $837, referred to as "in arrears," constituted payment to June 4, 1957, or to June 29, 1957, does not clearly appear. It does appear that the first of the monthly payments of $354 each was to fall due on the day of June 29, 1957. Thus, disregarding the small deduction on account of her occupancy until July 1, 1957, four payments of $354 each fell due prior to the institution of this special proceeding, to wit, the payments of June 29, 1957, July 29, 1957, August 29, 1957, and September 29, 1957, a total of $1,416.

It appears that Frank Banzet, Trustee, before he deposited the $9,382.34 with the clerk, paid from "George S. Comer's one-half of the net proceeds of sale" the items of $837 and $450, a total of $1,287. Thus, it appears that the surplus, after payment of the secured debt and foreclosure expenses, was $10,669.34; and that the share to which George S. Comer "would otherwise be entitled" was $5,334.67. (Note: The clerk's judgment fixes petitioner's share as $5,333.21.)

It appears that the judgments for $426.97, $79.20 and $25.74, respectively, a total of $531.91, were paid in accordance with the clerk's judgment.

Thus, assuming the $1,287 paid on account of "alimony in arrears" ($837) and *674 counsel fees ($450), and the $531.91 paid to satisfy the three judgments, and the four payments of $354 each, a total of $1,416, were properly charged against the share to which George S. Comer "would otherwise be entitled," there remained in said share on October 2, 1957, when petitioner instituted this special proceeding, a balance of $2,099.76, an amount substantially in excess of the amount due respondent J. B. Martin under his said judgment against George S. Comer.

The record raises but does not answer questions of vital importance. In her petition filed October 4, 1957, petitioner identifies herself as "Margaret Fuller Porter, formerly Margaret Fuller Comer, wife of Geo. S. Comer." She alleged: "On February 14, 1953, the petitioner (then Margaret Fuller Comer, wife of George S. Comer) and the said George S. Comer executed and delivered to Frank Banzet, Trustee," etc. (Our italics) The stipulated facts refer to her as "Margaret F. Comer (now Porter)." George S. Comer left Warren County "in or about the month of February 1957, and since said date his whereabouts have been unknown." Judge Hall's order of June 4, 1957, was entered "on motion of Margaret F. Comer * * *"

While the fact may be otherwise, petitioner's identification of herself, as well as other references to her, imply that she was not the wife of George S. Comer on October 2, 1957, when she instituted this special proceeding. Did she, prior to October 2, 1957, obtain an absolute divorce from George S. Comer in an action initiated by her on the ground of separation for the statutory period? If so, her right to alimony ceased and determined immediately upon the entry of such decree of absolute divorce. G.S. § 50-11, as amended by Ch. 872, Session Laws of 1955.

We deem it inappropriate to discuss the questions raised as to the legal effect of Judge Hall's order of June 4, 1957, until the facts relating to petitioner's marital status as of October 2, 1957, are clarified and established. These facts may have legal significance determinative of the controversy between petitioner and Martin, the only parties to this appeal.

The judgment of Judge Clark is vacated and the cause remanded for hearing de novo in which a determination may be made as to whether a decree of absolute divorce has dissolved the bonds of matrimony once subsisting between petitioner and George S. Comer and, if so, as to when, by whom and on what ground such action for absolute divorce was initiated. Upon further hearing, additional facts may be stipulated or otherwise established relating to material features of the separate action for alimony without divorce.

It is noted that the action for alimony without divorce was instituted by Margaret Fuller Comer, now Margaret Fuller Porter, in 1956, subsequent to the effective date of said 1955 amendment of G.S. § 50-11. Compare Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867.

Each party to this appeal will pay one-half of the costs incident thereto.

Judgment vacated and cause remanded.

PARKER, J., not sitting.