Coble v. Medley

• Decision Date: 21 November 1923
• Docket Number: (No. 418.)
• Citation: 186 N.C. 478,119 S.E. 892
• Court: North Carolina Supreme Court
• Parties: COBLE. v. MEDLEY et al.

119 S.E. 892

(186 N. C. 478)

COBLE.

v.MEDLEY et al.

(No. 418.)

Supreme Court of North Carolina.

Nov. 21, 1923.

Appeal from Superior Court, Anson County; Finley, Judge.

Action by William Coble against J. J. Medley and others. After judgment for plaintiff, and execution returned unsatisfied, motion for execution against the person of two of the judgment debtors was made and disallowed, and plaintiff appeals. Affirmed.

Civil action to recover damages for an alleged willful, malicious, and negligent assault. Plaintiff filed his complaint alleging that the defendants did "unlawfully, willfully, and maliciously commit an assault on the plaintiff with pistols, " to his great hurt and injury. Defendants filed answer alleging that they were acting within what they honestly believed to be their rights and proper self-defense as officers of the law in attempting to arrest and actually arresting the plaintiff. To this the plaintiff filed a reply alleging that the defendants were grossly negligent in the discharge of their duties, etc. Upon the issues thus joined, at the October term, 1921, the jury returned the following verdict:

"(1) Did the defendant wrongfully and unlawfully injure the person of the plaintiff as alleged in the complaint? Ans. Yes.

"(2) If so, what damages by way of compensation is the plaintiff entitled to recover? Ans. $300.

"(3) What punitive damages if any is the plaintiff entitled to recover? Ann. ——."

Judgment on the verdict in favor of plaintiff. Execution having been issued against the property of the judgment debtors and returned unsatisfied, plaintiff moved before the clerk on May 26, 1923, for execution against the person of two of the judgment debtors, to wit, Sid Dabbs and Wade Flake. This motion was disallowed and affirmed on appeal to the judge of the superior court at the June term, 1923. From the order of the Superior court, disallowing plaintiff's motion, he appeals, assigning same as error.

W. R. Jones, of Rockingham, Sikes & Brown, of Albemarle, and A. A. Tarlton, of Wadesboro, for appellant.

McLendon & Covington, of Wadesboro, for appellees.

STACY, J. There is but one question presented by this appeal: Is the plaintiff, on the instant record, entitled to execution against the person of two of the judgment debtors? We think not.

In the first place, it will be observed, there is no finding by the jury that the assault was committed willfully or maliciously, but only wrongfully and unlawfully. True, the issue uses the expression "as alleged in the complaint, " and the complaint contains an allegation of willful and malicious injury, but in the reply this is reduced to an allegation of a grossly negligent injury. It would be highly technical to say the issue did not include the allegation of the reply as well as that of the complaint, simply because it closed with the words "as alleged in the complaint." None of the evidence, adduced on the hearing, appears in the statement of case on appeal, and hence we cannot say whether the allegation of the complaint, as distinguished from that of the reply, has been sustained. It is not specifically included in the issue submitted to the jury, and their failure to award any punitive damages would seem to negative a finding of malice or wanton disregard of the plaintiffs rights. To warrant an execution against the person of the judgment debtor, after plaintiff has exhausted his remedy against the property of the defendant, wherethe cause of arrest is set out in the complaint (Peebles v. Foote, 83 N. C. 102), the same must be sustained by the evidence and established by the verdict. Oakley v. Lasater, 172 N. C. 96, 89 S. E. 1063; McKinney v. Patterson, 174 N. C. 483, 93 S. E. 967; Ledford v. Emerson, 143 N. C. 527, 55 S. E. 969, 10 L. R. A. (N. S.) 362.

In the case of Huntley v. Hasty, 132 N. C. 279, 43 S. E. 844, chiefly relied on by plaintiff, there was not...