Harris v. Hinson

• Decision Date: 15 September 1987
• Docket Number: No. 8720SC64,8720SC64
• Citation: 360 S.E.2d 118,87 N.C.App. 148
• Court: North Carolina Court of Appeals
• Parties: Emma Jean HARRIS, Administratrix of the Estate of James Robert Harris, deceased v. Jerry HINSON.

Page 118

360 S.E.2d 118

87 N.C.App. 148

Emma Jean HARRIS, Administratrix of the Estate of James

Robert Harris, deceased v. Jerry HINSON.

No. 8720SC64.

Court of Appeals of North Carolina.

Sept. 15, 1987.

Robert E. Little, III, and F. O'Neil Jones, Wadesboro, for plaintiff-appellant.

Henry T. Drake, Wadesboro, for defendant-appellee.

COZORT, Judge.

The plaintiff, Emma Jean Harris, filed a civil action for wrongful death against Jerry Hinson, defendant herein, who shot and killed her husband on 12 August 1979. On 12 October 1983, a jury returned a verdict of $35,000.00 in the plaintiff's favor. On 18 June 1984 an execution was issued to satisfy the judgment. The execution was returned unserved on 14 July 1984, with the deputy sheriff checking the box on the return indicating that he did not locate property on which to levy. In May of 1984, the defendant had filed a motion to have declared exempt his home and personal property. The Clerk of Superior Court issued an order declaring the property exempt from execution. On 5 November 1985, a second execution was issued. The record is silent as to the results of that attempt to satisfy the judgment.

On 27 March 1986, the plaintiff filed a motion to examine the defendant's tax returns and cancelled checks for 1982, 1983, 1984, and 1985. On 16 April 1986, Superior Court Judge H.H. Walker entered an order granting the plaintiff's motion and directing the defendant to appear before the Clerk of Superior Court of Anson County on 24 April 1986 with the documents. On 24 April 1986, the defendant filed an affidavit averring: "1. That he is employed by the Seaboard Railroad as an hourly employee. 2. That he obtains from his employer earnings for his personal services. 3. That the earning record from my employer is necessary for the use of a family supported by my labors. [sic ]"

On 18 June 1986, the plaintiff filed a verified petition requesting the court to appoint a Receiver to receive the defendant's wages and "to make reasonable disbursement to the defendant for his living expenses and apply the balance to the Judgment herein." In support of the request, plaintiff alleged that the defendant "has the substantial income in excess of $35,000.00 a year, and has an income sufficient to pay the Judgment against the plaintiff [sic ], but that the defendant is defrauding the plaintiff in expending his income and secreting his income such as to present the appearance of being insolvent, and that the defendant's income greatly exceeds his needed expenses to exist...." The plaintiff further alleged that "unless a Receiver of the same is appointed by this Court the defendant will conceal or dispose of his property and collect and conceal the amounts due to the plaintiff...."

On 25 October 1986, Superior Court Judge James C. Davis entered an order denying the plaintiff's petition to appoint a receiver. The order made no factual findings as to the allegations made by plaintiff in her 18 June 1986 petition or as to the affidavit filed by defendant on 24 April 1986. Instead, the trial court concluded, as a matter of law:

That the Courts in the State of North Carolina cannot, through supplemental proceedings on execution, order a receiver to receive a person's wages in order to satisfy a judgment rendered in this State.

Plaintiff appeals. Regrettably, we must affirm.

N.C.Gen.Stat. § 1-362 provides:

The court or judge may order any property, whether subject or not to be sold under execution (except the homestead and personal property exemptions of the judgment debtor), in the hands of the judgment debtor, to be applied towards the satisfaction of the judgment; except that the earnings of the debtor for his personal services, at any time within 60 days next preceding the order, cannot be so applied when it appears, by the debtor's affidavit or otherwise, that these earnings are necessary for the use of a family supported wholly or partly by his labor. (Emphasis added).

This statute has been expanded by our Courts to preclude the execution on any future earnings to satisfy a judgment. Our Supreme Court has held that "[p]rospective earnings of a judgment debtor are entirely hypothetical. They are neither property nor a debt. Hill v. Central Trust Co., 33 Ohio App. 204, 168 N.E. 768 (1929)." Finance Co. v. Putnam, 229 N.C. 555, 557, 50 S.E.2d 670, 671 (1948). According to Putnam our statutes regarding proceedings supplemental to execution were designed after those of the State of New York, "where it has been steadfastly held ... that 'future earnings, wages, or salaries to become due, or which become due after service of the order for examination, cannot be reached by supplementary proceedings.' " Id. (citation omitted). Putnam states that the basis for the rule was set out in In Re Trustees of Board of Publication and Sabbath School Work, 22 Misc. 645, 50 N.Y.S. 171 (1898). Id. That case held:

Supplementary proceedings do not affect property acquired after they have been commenced [citations omitted]; and earnings becoming due after the service of...