lass, 41 W. Va. 13, 23 S. E. 671; Smith v. Smith, 48 W. Va. 51, 35 S. E. 876. To hold that a near relative other than a wife, purchasing the property of a debtor at a bona fide sale, must disprove an allegation of purchase for the benefit of the debtor, or of a purchase with money furnished by the debtor, by proof of payment with his own money, would be wholly inconsistent with these general principles.

expenses.

sheriff where child is concealed in disobedience of divorce decree giving custody to wife, court was empowered to enforce its decree by adjudging husband in contempt and sentencing order to deliver child to sheriff, under Revisal him to imprisonment until compliance with 1905, §§ 615, 684, 944, subsec. 7.

3. Contempt 66(7)-Findings supported by evidence not reviewed.

Action of court in contempt proceedings, will not be reviewed on ground of insufficiency of evidence to sustain findings, where there is evidence to support court's action.

Appeal from Superior Court, Henderson County; Harding, Judge.

Proceedings by Bessie E. S. Flack against H. M. Flack and another. From judgment adjudging named defendant in contempt, he appeals. Affirmed.

Nor do the admitted circumstances make out a prima facie case of fraud. The debtor had considerable property after the partnership relation with the plaintiff was created; but, according to her answers to interrogatories propounded in the original bill, she owed debts sufficient in amount to consume practically all of it, which her answer on oath avers she has paid. It further avers the use of about $800 in extraordinary, but necessary, An error or false claim of $300, Proceedings for contempt or as for conin the amount of one of the debts paid, is not tempt, heard August 6, 1920, the charge bea circumstance of any appreciable weight. ing that H. M. Flack, defendant, Sallie The debt was $500, and the answer put it at Flack, his mother, etc., in disobedience of the $800. That it was paid the plaintiff her- decrees and orders of the court made in the self proved. There was no effort to contro- cause, awarding the minor children of the vert these answers, except in the one partic-marriage to plaintiff was willfully disobeying ular above mentioned, and, being responsive and obstructing and hindering the due exeto the interrogatories and uncontroverted, they must be taken as true. They are evidence for the respondent. Jones v. Cunningham, 7 W. Va. 707; Shurtz v. Johnson, 28 Grat. (Va.) 657. Application of a debtor's property to the payment of his debts is no evidence of fraud in favor of a creditor who has not been paid.

In view of these principles and conclusions, we are of the opinion that the decree complained of is erroneous, and should be reversed, that the plaintiff's bills should be dismissed, with costs in the court below to the defendants therein, and that costs in this court be awarded to the appellant, Nell Phares, all of which will be adjudged, ordered, and decreed.

· WILLIAMS, P., absent.

(180 N. C. 594)

FLACK v. FLACK et al. (No. 516.) (Supreme Court of North Carolina. Dec. 15,

1920.)

cution of said orders and decrees in reference to Frank Flack, minor, etc., and so guilty of contempt of court, etc. On the hearing, the court, on full finding of the facts adjudged that said H. M. Flack was guilty as charged, and that he be imprisoned till compliance with the orders be shown, From this judgment defendant ap

etc.

pealed.

McD. Ray and W. C. Rector, both of Hendersonville, for appellant.

Smith, Shipman & Arledge, of Hendersonville, for appellee.

HOKE, J. From the findings of fact it appears: That heretofore at June special term, 1920, in action duly instituted and tried in the superior court of Henderson county before his honor, B. F. Long, judge, and a jury, plaintiff was granted an absolute divorce from defendant, and the care and custody of the children of the marriage, to wit, Margaret E. Flack and Frank Flack, were awarded to plaintiff, the mother, Margaret E. being already in care and control of the mother, the order as to Frank Flack,

1. Divorce 289 Court may award chil- then in care of defendant, was made and emdren's custody as justice requires.

Court having jurisdiction in divorce case has the power to make such disposition as to the

care and custody of the children as the right

and justice of the case may require.

2. Divorce 305 Husband's refusal to deliver child to sheriff pursuant to decree constitutes contempt.

Where husband having custody of child refused to deliver child to sheriff or to inform

bodied in the court's decree in terms as follows:

the sheriff of Henderson be, and he is hereby,

"And it is further ordered and decreed that

directed to place said Frank Flack in the custody of said Bessie E. Flack, plaintiff, and the said defendant H. M. Flack deliver the cusItody of the said Frank Flack to the said Bessie E. Flack, together with the wearing apparel, etc. [Signed] B. F. Long, Judge."

(105 S.E.)

That on execution duly issued from the the orders and judgment of this court. Said H. superior court of Henderson county, con- M. Flack by reason of his refusal to deliver taining a copy of said decree and order the custody of the said child to the sheriff of placed in his hands, the sheriff of Henderson said county, and by reason of his refusal to give the sheriff information upon which he may county had made diligent effort to carry out be able to carry out the process of the court, the orders and decrees of the court in refer- is in willful disobedience of the processes and ence to said Frank Flack, and had been un- lawful orders issued by this court, and is reable to carry out or comply with the same, sisting willfully an order and process of this by reason of the willful hindrance and inter- court." ference of said H. M. Flack, defendant, the facts more directly pertinent as to the disobedience and misconduct of said defendant being set forth in the present judgment of his honor in terms as follows:

[1, 2] Upon these facts the court on the present hearing adjudged that defendant was in contempt of court and willful disobedience of the decrees and orders in the cause and resistance thereto, and that he be imprisoned till compliance be shown, etc. And we are of opinion that there is no error in the proceedings that gives the defendant any just grounds of complaint. As incident to the trial of the action of divorce, the court, hav

"That the trial of this case upon its merits was concluded on Saturday of the last week of the Junc special term, 1920. That after the jury had rendered their verdict and delivered to the court the issues set out in the record, and after the judgment had been signed, courting jurisdiction of the cause and the parties, adjourned for the term, which was some time was fully empowered to make such disposibetween sunset and dark of that day. That on tion as to the care and custody of the chilSaturday morning when the defendant H. M. Flack and Sallie Flack left their home several dren as the right and justice of the case miles in the country from Hendersonville might require. And, as a court of record they left the boy, Frank Flack, the infant having general jurisdiction of law and equison of the plaintiff and defendant, at the ty and of the cause in which the original home of H. M. and Sallie D. Flack, asleep judgment was rendered, it had, on the presin bed, and came to court. Immediately upon ent hearing, full power to enforce obedience the return that day to their home after court to its orders and decrees by proceedings for had adjourned and judgment had been signed contempt or "as for contempt," a power also the said Frank Flack was taken by the defend-recognized and confirmed by our statutes apant H. M. Flack and his mother, or by some one acting for them and with their knowledge missioners, 85 N. C. 215; Rev. §§ 615, 684, pertaining to the subject. Cromartie v. Com944, subsec. 7.

and consent, from the home of H. M. Flack, and they have since that time procured that infant Frank Flack to be concealed for the purpose of preventing the sheriff of Henderson county from finding the said Frank Flack and from executing the process of the court, directing him to take into his custody the said infant child and deliver it to his mother. That the said H. M. Flack and his mother, Sallie, know where the child is, or, if at the moment of this hearing they do not know definitely the spot where the child is, they have information upon which they can easily ascertain the location of the child and deliver him to the sheriff of Henderson county for the purpose of carrying out the orders of the court. That at the time the judgment was signed decreeing the custody of said child to its mother the child was at the home of H. M. Flack, the defendant in this case, and when the sheriff under process of mother the custody of said child, they refused, and now continue to refuse, to deliver the custody of said child, and refused, and now continue to refuse, to give the sheriff any information upon which he may be able to locate said child and deliver it to its mother and carry out

this court demanded of the defendant and his

[3] As we understand the record, there is no exception made to the form of the order, nor is it contended that his honor's findings are insufficient to sustain the judgment rendered, the objection being that these findings are not sustained by the affidavits and evidence submitted at the hearing. On that question our decisions hold that the "action of his honor will not be reviewed on appeal when there is any evidence to support it." Lodge v. Gibbs, 159 N. C. 66, 74 S. E. 743, citing Green v. Green, 130 N. C. 578, 41 S. E. 784; In re Denton, 105 N. C. 59, 11 S. E. 244; Young v. Rollins, 90 N. C. 125. The same position is approved in Ex parte McCown, 139 N. C. 95, 51 S. E. 957, 2 L. R. A. (N. S.) 603. In that aspect of the matter, we have given the record very careful consideration, and are of opinion that the findings of his honor are amply sustained, and his conclusions and judgment both of law and fact should be affirmed.

Affirmed.

(180 N. C. 585)

DIXON et al. v. HORNE et al. (No. 512.)

(Supreme Court of North Carolina. Dec. 15, 1920.)

intendment that their rights and interests were being provided for." Orinoco Supply 76 S. E. 273, 42 L. R. A. (N. S.) 707; WithCo. v. Shaw Bros. Lumber Co., 160 N. C. 428, ers v. Poe, 167 N. C. 372, 83 S. E. 614; VoorContractor's bond hees v. Porter, 134 N. C. 591, 47 S. E. 31,- 65 L. R. A. 736; Town of Gastonia v. Engineering Co., 131 N. C. 363, 42 S. E. 858, and Gorrell v. Water Supply Co., 124 N. C. 328, 32 S. E. 720, 46 L. R. A. 513, 70 Am. St. Rep. 598. And so stated, the principle has been fully approved in the more recent cases of Lumber Co. v. Johnson, 177 N. C. 44-47, 97 S. E. 732; Crumpler v. Hines, 174 N. C. .283, 93 S.

Mechanics' liens 315
held to protect unnamed materialmen.
Sureties, on contractor's bond conditioned
that contractor should faithfully perform con-
tract and satisfy claims and demands incurred,
were liable to materialmen for material fur-
nished and labor performed in construction of
house, though materialmen were not named as
beneficiaries in bond.

Appeal from Superior Court, Henderson E. 780; McCausland v. Construction Co., 172 County; Long, Judge.

Action by G. E. Dixon and another against Carson Horne, C. L. Price, and the J. R. Wilson Lumber Company. Judgment for plaintiffs, and last-named defendant excepts and appeals. No error.

N. C. 708-711, 90 S. E. 1010. Speaking more' minutely to some of the cases, and the question directly decided therein, it is said in McCausland v. Construction Co., supra:

"In case of building contracts with bonds guaranteeing performance on the part of the contractor, it is held that in determining the Civil action to recover balance alleged to question of the sureties' liability to third perbe due plaintiffs for material and labor, heard sons the contract and bond shall be construed on facts agreed upon at fall term, 1920. together (Mfg. Co. v. Andrews, 165 N. C. 285); From these facts it appeared: That defend- and recoveries on the part of claimants of that ant C. L. Price contracted and agreed to character, usually laborers and materialmen. build a house for Carson Horne, furnishing not expressly named, are sustained where it labor, materials, etc., therefor at a stipulated appears that the guaranty bond, in express price, and gave bond for faithful performance terms, provides for liability to such persons, of the contract, with defendant lumber com-rell v. Water Supply Co., supra; or when there as in Morton v. Light & Power Co., supra, Gorpany, etc., as surety, said bond containing, is stipulation that claims of this kind shall be among other things the following stipulation: paid by the contractor, the case presented in "Now, therefore, the condition of this obli- Supply Co. v. Lumber Co., supra, and Gastonia gation is such that if the principal shall faith-v. Engineering Co., an application of the prinfully perform the contract on his part and sat- ciple approved by many authoritative decisions isfy all claims and demands incurred, for same elsewhere (Knight & Jillson Co. v. Arthur and fully indemnify and save harmless the own- Castle, 172 Ind. 97, reported also in 42 L. R. er from all costs and damages which she may A. [N. S.] 573, with note by the editor; Ocho suffer by reason of failure so to do, etc., * * * v. Carnahan Co., 42 Ind. App. 157; Brown then this obligation shall be void." v. Markland, 22 Ind. App. 652; Jordan v. Kavanaugh, 63 Iowa, 152, and cases cited in note to Cleveland Roofing Co. v. Gaspard, Anno. Cases, 1916A, vol. 39, pp. 745-758); or where the language of the instrument is sufficiently ambiguous to permit of construction and the terms of the obligation and the attendant facts and circumstances, relevant and permissible in their sonable intendment that claimants of that charproper interpretation, show by fair and rea

That plaintiffs under the contract supplied a quantity of material used in said building, and did a considerable amount of work, stone work and other, the balance due plaintiffs being $705.40. That the pro rata amount in the hands of the owner applicable to plaintiff's claim after notice given, etc., is $249.82, for which judgment is tendered, leaving ul-acter are to be provided for; an instance pretimate balance due plaintiff $455.58. Upon these, the facts chiefly pertinent, there was judgment against the owner for the $249.82, and against the contractor and surety for the remainder. Defendant, the surety company excepted and appealed.

sented in Shoaf v. Ins. Co., 127 N. C. 308, and the cases of Voorhees v. Porter and Withers v. Poe, may be referred, in part, to same position."

The instant case is well-nigh exactly similar to that of Orinoco Supply Co. v. Shaw McD. Ray and O. V. F. Blythe, both of Bros. Lumber Co., supra, and, considering the Hendersonville, for appellant.

present contract and bond in view of these J. F. Justice, of Hendersonville, for ap- authorities and the principles they approve pellees.

and illustrate, we are of opinion that they clearly extend to the claim of plaintiff, and that liability therefor has been properly adjudged against the surety.

HOKE, J. It has been repeatedly held in the state that the beneficiaries of an indemnity contract ordinarily can recover, though In McCausland's Case the surety was renot named therein, "when it appears by ex- lieved, but that was because the bond in that press stipulation or by fair and reasonable case, as affected by the contract and other

(105 S.E.)

circumstances pertinent to its true construc-, the attached funds without a hearing as to tion, appeared to be one in strictness of in- ownership held erroneous. demnity toward the owner, and in which the 7. Appearance interests of third persons, materialmen or others, were in no way contemplated or provided for.

We find no error in the record, and the have specially appeared to object to jurisdicjudgment for plaintiff is affirmed.

1. Courts 39-Court required to ascertain jurisdiction on objection by nonresident de-appeal. fendants specially appearing.

On attachment, in action against nonresident defendants denying jurisdiction of court on special appearance, the first duty of the court is to ascertain its own jurisdiction to try

This suit was brought to recover damages for the breach of a contract, whereby the defendants agreed to sell and deliver to the plaintiff 1,000 cases of No. 1 Standard Alaska pink salmon, 1919 pack, 48 cans to the case, at the price of $1.50 per dozen cans, 11⁄2 per 2. Attachment 280, 306-Claimant of prop-cent. off if paid for within 10 days from date erty attached required to intervene and assert claim.

In action against constructively served nonresidents in which there has been an attachment, the court has jurisdiction only to the extent of the value of the property attached, where there is no intervening claimant or where issue of ownership has been decided in favor of plaintiff against intervening claimant, and the court has no right to render a personal judgment against defendant in any sum in ex-value received, on the plaintiff, to which cess of proceeds of attachment sale.

mitted, which, with the answers thereto, are, mitted that the defendants were nonresias follows:

"(1) Did the plaintiff enter into the contract with the defendant as alleged? Answer: Yes (as to James R. Baker & Co. and Wakefield & Co.).

"(2) Did the defendant breach the said contract? Answer: Yes (as to James R. Baker & Co. and Wakefield & Co.).

"(3) What damages, if any, is the plaintiff

entitled to recover? Answer: $2,070.00.”

The court then signed the following judgment:

This cause coming on to be heard, and being heard before his honor W. F. Harding, judge, and a jury, at the May term, 1920, of Catawba superior court, and at the close of plaintiff's evidence, the defendants move for judgment as of nonsuit and the court being of the opinion that the plaintiff has failed to make out his case against the defendants J. L. Smiley & Co., Alaska Herring & Sardine Company and the Bank of California. It is on motion of Council & Yount, attorneys for 'defendants J. L. Smiley & Co., Alaska Herring & Sardine Company, and the Bank of California, ordered that as to these defendants the action be dismissed and that they recover of the plaintiff the cost of this action, to be taxed by the clerk of this court, and it is further ordered

dents, and the defendants denied, under a special appearance, that such jurisdiction existed. Again, when the funds in the Bank of Hickory were attached, it was required of any one claiming those funds, as does the Bank of California in this case, to intervene and assert its claim, setting forth the facts upon which it based its right to them in its affidavit or petition for intervention, which could be answered by the plaintiff, and thus the facts could be found and the court could determine as to the ownership of the funds. If there is no intervention and claim of the funds by a third party, or if there is such, and the question of ownership is finally decided in favor of the plaintiff and against the claim of such third party, the court would acquire jurisdiction to the extent of the property attached, but not beyond this, so that a personal judgment could not be rendered against the defendant for any sum in excess of the amount the property brings at a sale thereof by the sheriff under the attachment, and the judgment, or order, of the court. The property represents and defines the jurisdiction of the court and the extent thereof. Winfree v. Bagley, 102 N. C. 515, 9 S. E. 198; Cooper v. Reynolds, 10 Wall. (U. S.) 308, 19 L. Ed. 931; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. In the case last cited, the court held that except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other states where actions are brought against nonresidents, is effectual only where, in connection with process against the person for commencing the action, property in the state is brought under the control of the court and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property, or affecting Thos. P. Pruitt, E. B. Cline, and W. A. some interest therein; in other words, where Self, all of Hickory, for plaintiff.

that the attachment issued in this cause be

dissolved and the money attached in the Bank of Hickory be turned over to the Bank of California, N. A., or to Councill & Yount, as attorneys for said Bank of California, the same being the amount of the proceeds of the draft on Wakefield & Co. still remaining in this court, and upon giving such bond that the Bank of California enter into a bond in the

sum of $2,300, to be approved by the clerk of this court, and upon giving such bond that the funds in the Bank of Hickory be turned over to the said Bank of California, and the cost

of the bond to be taxed in said bill of cost.

The court then gave a separate judgment upon the verdict against defendants Baker & Co. and Wakefield & Co. for $2,070, and costs. Both parties appealed.

the action is in the nature of a proceeding in

Council & Yount, of Hickory, for defend- rem. There is in that case a clear and conants.

WALKER, J. (after stating the facts as above). It will be impossible to decide this case upon its true merits, at this time, because it has been tried with slight regard to correct procedure, and the court has been misled into giving judgment without ascertaining all of the pertinent facts.

[1-3] When the plaintiff brought this action and caused an attachment to be issued and levied on the funds in the Bank of Hick

ory, because, as he alleged, they belonged to the defendant Wakefield & Co., who drew the draft payable to the order of the Bank of California, it became the first duty of the court to ascertain its own jurisdiction to

cise statement of the purpose and nature of attachment proceedings, and their effect upon the jurisdiction of the particular court wherein they are pending, by Justice Miller, which was quoted from Cooper v. Reynolds, supra, in which the opinion of the court was delivered by Justice Field. In Winfree v. Bagley, supra, this court adopts the law as declared in those two cases, and quotes from Pennoyer v. Neff, supra, as follows:

"The substituted service of process by pubis the same as in North Carolina), and by lication allowed by the laws of Oregon (which similar laws in other states, where actions are brought against nonresidents, is effectual only where, in connection with process against the person for commencing the action, property in