# W. P. Love & Co. v. Young

> Supreme Court of North Carolina · June 5, 1873 · 69 N.C. 65

URL: https://www.frixlaw.com/law-library/cases/3655381

## Case

- **Full name:** W. P. LOVE & CO., v. G. W. YOUNG Et Al.
- **Court:** Supreme Court of North Carolina
- **Decided:** June 5, 1873
- **Citations:** 69 N.C. 65
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Pearson
- **Judges:** Pearson
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3655381

## How later opinions describe it (automated extraction)

- explaining that no “rule of law [forbade] his Honor, at Spring Term, 1873, from reconsidering an interlocutory order made at Fall Term, 1872,” and that if the judge “became satisfied, that . . . the case was not properly constituted before him, it was his duty to dismiss the p…

## Opinion text

Pearson, C. J.
The warrant of attachment may be issued “ whenever it shall appear by affidavit, ” &c., and that the
*66
defendant is a non-resident, or
has departed therefrom with intent
to
defraud
his
creditors,
and to
avoid the service
of a
summons
or
keeps himself concealed with like intent, &c., ” C.
C. P., sec. 201.
The affidavit in this proceeding is “ that the defendant
is absent,
so that the ordinary process of law cannot be served on him. ” He may have gone on a visit of pleasure or ©f business, but
non constat,
that he left with intent to defraud his creditors or to avoid service of process.
The affidavit on which the warrant issued, and by which the proceeding was instituted, does not conform with the statute, either in letter or spirit.
The astute counsel of the plaintiff fell back upon the position that at Fall Term, 1872, a motion to dismiss was considered and refused; which as he insists, was final and conclusive-, not being appealed from, and consequently that the Judge had no power to entertain the same motion, on the same state of facts at Spring Term, 1873, and for this, he relied on an ingenious “
reading ”
of the opinion in
Brown
v.
Hawkins,
68 N. C. Rep. 444 . In that case the rights of the parties had been adjudicated by the Supreme Court, and it was held to be an irregularity approaching, if not passing, the line of judicial subordination, for the Judge to entertain the motion a second time upon the same state of facts existing at the time of the first motion, no new matter being alleged or proved.
In our case there had been
no adjudication of the Supreme Court.
At Fall Term, 1872, his Honor refused the motion to dismiss; at Spring Term, 1873, his Honor allowed the motion, and ordered the proceeding to be dismissed.
We are not aware of any rule of law which forbids his Honor, at Spring Term, 1873, from reconsidering an interlocutory order made at Fall Term, 1872. According to the ■old equity practice, petitions to rehear were of every-day ■occurrence. If, while the proceeding was pending, the
*67
Judge became satisfied, that because of the insufficiency of the affidavit, or for other reason, the case was not properly constituted before him, it was his duty to dismiss the proceeding, notwithstanding he at Fall Term, 1872, failed to take the same view of the case.
The concluding general remarks of Justice Boyden, in
Brown
v. Hawkins, sup., are to be construed in reference to the facts of that case, and particularly in reference to the fact that there had been an appeal to the Supreme Court, and an adjudication of the questions of law.
No error.
Per Curiam. . Judgment affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3655381. Public record. Not legal advice.