Hinsdale v. Sinclair

• Decision Date: 30 June 1880
• Citation: 83 N.C. 338
• Court: North Carolina Supreme Court
• Parties: S. J. HINSDALE v. D. SINCLAIR.

83 N.C. 338

S. J. HINSDALE

v.D. SINCLAIR.

Supreme Court of North Carolina.

June Term, 1880.

PROCEEDING supplemental to execution heard at Spring Term, 1880, of ROBESON Superior Court, before Eure, J.

The plaintiff appealed from the judgment below.

Messrs. Jas. C. McRae, McNeill & McNeill and Hinsdale & Devereux, for plaintiff .

Messrs. W. F. French and Rowland & McLean, for defendant .

DILLARD, J.

In this case an order of examination of defendant was procured from the clerk of Robeson county, on proceedings supplemental to execution on a judgment docketed in that county, and the order was grounded on an affidavit stating the issue of an execution to the county of the debtor's residence and a return thereof “unsatisfied” by the sheriff, and of the further fact, that the debtor had property which ought to be subjected to the payment of the judgment.

The defendant appeared on the day of the examination and moved to vacate the order upon objections to the affidavit, and there was an appeal to the judge; and from the judgment of the judge dismissing the proceedings the plaintiff appeals to this court, and so the question for our review and determination is, as to the sufficiency of the sheriff's return on the execution and the additional fact stated in the affidavit to warrant the proceeding.

By the law as it was under our system of courts prior to the constitution of 1868, a creditor with a legal demand had to establish his debt by a judgment in a law court, and one of his remedies for its enforcement was a fi. fa., which dealt with legal titles only in things corporeal, except legal rights of redemption, equities of redemption and other trust estates of the debtor authorized to be levied and sold under the act of 1812. And when the legal process was tried out and found ineffectual, then it was within the jurisdiction of the court of equity to aid the creditor by giving him relief, as to estates and rights of the debtor not capable of application by an execution, by a decree of the court operating in the nature of an execution. Brown v. Long, 1 Ired. Eq., 190. To initiate the equity jurisdiction, it was necessary as a general thing to have first issued a fi. fa. and had a return thereon of “unsatisfied” or nulla bona as indicating the insufficiency of the legal remedy, and then by bill filed to show forth that fact, and also to aver and point out the particulars of estates, interests and choses in action beyond the reach of an excution, for it could not otherwise appear but that the party's legal remedy was full and complete.

Under our present system, we have not courts of law and courts of equity as separate tribunals for the enforcement or administration of rights, but we have a union of the powers of each in our superior courts exercisable in but one form of action; and it has been repeatedly decided that while distinction in the forms has been abolished, the principles of law and equity still exist, and therefore it would naturally follow in our present organization that if the fruits of a judgment cannot be had by a fi. fa. with its limited reach, the superior courts could be invoked to help it out by its decrees in the nature of a fi. fa., and such a jurisdiction by action we take it still exists, unless it has been taken away and made to be exclusively exercisable through proceedings supplementary to execution.

The code of civil procedure in section 264 in part at least, has undertaken to provide for the emergency both in the case of an execution returned, and of one still in the hands of the sheriff, by declaring the creditor entitled in both cases to an order to examine the debtor concerning his property, giving the right, in the instance of a return of unsatisfied, in general terms, without prescribing how the application for the order is to be made, whether upon an affidavit or without; and if upon an affidavit, without saying what facts it shall contain, but prescribing in the case of an execution unreturned, proof to be made by affidavit or otherwise of property in the debtor, which he...