Ledford v. Emerson

• Decision Date: 22 December 1906
• Citation: 55 S.E. 969,143 N.C. 527
• Parties: LEDFORD. v. EMERSON.
• Court: North Carolina Supreme Court

55 S.E. 969

143 N.C. 527

LEDFORD.

v.EMERSON.

Supreme Court of North Carolina.

Dec. 22, 1906.

1. Constitutional Law—Imprisonment fob Debt—Body Execution.

Const, art. 1, § 16, prohibiting imprisonment for debt, except in cases of fraud, should be construed to mean that there shall be no imprisonment to enforce payment of a debt under final process, unless it has been duly made on complaint and a corresponding issue found by the jury that defendant had been guilty of fraud.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 151 1/2.]

2. Execution — Body Execution — Feaud —Burden of Proof.

Where an issue of fraud is raised by the pleadings, the plaintiff must sustain the burden of establishing the fact of fraud, before he can entitle himself to an execution against defendant's person.

3. Same—Statutes.

Revisal 1905, § 735, providing that a defendant arrested may at any time before judgment apply to vacate the order of arrest on an application denying that facts alleged in the affidavit for the order, and demand that the issue be submitted to a jury, etc., applies only to an order of arrest as a provisional remedy, and not to an arrest under a capias ad satisfaciendum.

4. Habeas Corpus—Capias—Discharge—Appealable Order.

Where defendant, after arrest on a capias ad satisfaciendum was discharged on a writ of habeas corpus, from which plaintiff appealed, the writ might be treated as in the nature of a motion in the cause to recall the execution and to discharge the defendant; the denial of which is reviewable by appeal.

5. Same—Scope of Writ.

Revisal 1905, § 1822, forbids the use of habeas corpus only where the person applying therefor has been committed or is detained by virtue of a final order, judgment, or decree, of a competent tribunal of civil or criminal jurisdiction, or of an execution issued thereon. Held, that habeas corpus will lie to obtain the discharge of the defendant from an execution against his person, where it appears from the judgment roll that the court had no jurisdiction to issue such execution.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 18.]

6. Bail—Discharge by Sureties.

Where defendant, who had been arrested on a body execution, was discharged on habeas corpus, he could not thereafter be held on a surrender by his sureties.

7. Execution—Supplementary Peoceedings —Other Proceedings Pending.

A defendant cannot be ordered to appear before the clerk of the court and be examined in a supplementary proceeding, while there is another similar proceeding against him pending on appeal to the Supreme Court.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 21, Execution, § 1096.]

Appeal from Superior Court, Cherokee County; W. R. Allen, Judge.

Petition for habeas corpus by A. S. Emerson, to obtain his discharge from arrest on an execution against the person in an action brought against him by John T. Ledford. From a judgment directing petitioner's discharge, plaintiff, Ledford, appeals. Affirmed.

This is a petition for a habeas corpus by the defendant, in which he asks to be discharged from an arrest made by the sheriff, under an execution against his person issued in the above-entitled case. The matter was heard before Judge W. R. Allen, at chambers, on August 6, 1906, and the defendant was discharged. It is alleged that the parties were equal partners in a transaction by which in 1900 and 1901 they secured options for the purchase of certain land situated in the state of Georgia, which defendant took in his own name for their joint use and benefit, and which were renewed from time to time. The defendant sold the options for $10,000 in 1903, concealed the real amount of the proceeds of the sale, and paid the plaintiff only $250, falsely stating to him at the time that the said sum represented his share of the said proceeds; and, upon the faith of that statement, the plaintiff accepted the $250, and gave his receipt for the same in full satisfaction of his share. A much larger amount was due, and this action was brought to recover the balance. The plaintiff filed an affidavit, alleging the above facts, and obtained an order of arrest under which the defendant was taken in custody. He moved to vacate the order, and his motion was allowed by Judge Neal, October 28, 1905. An appeal was taken to this court by the plaintiff, and at Fall term, 1905, the ruling was reversed, and the case remanded. 140 N. C, at page 288, 52 S. E. 641, to which we refer for greater certainty. The case was before us on a prior appeal (138 N. C. 502, 51 S. E. 42), and again before us at the last term (141 N. C. 596, 54 S, E. 433), but not upon matters specially germane to the questions now involved. The issue submitted to the jury and the answer thereto were as follows: "In what amount, if any, is the defendant indebted to the plaintiff by reason of the matters alleged in the complaint? Ans. $4,-225, with interest from May 1, 1903." The court adjudged simply that the plaintiff recover of the defendant the said sum and his costs, to be taxed by the clerk. The execution on this judgment against the property of the defendant having been returned unsatisfied, the clerk, without any order from the court, issued an execution against the person of the defendant under which he was arrested and afterwards discharged by Judge Allen as above stated. From the order discharging him, the plaintiff appealed.

E. B. Norvell, Busbee & Busbee, and Axley & Axley, for appellant.

Thos. A. Jones, Dillard & Bell, J. C. Martin, and Ben Posey, for appellee.

WALKER, J. (after stating the case). The plaintiff alleges that the defendant collected the proceeds of the sale of the options which amounted to $10,000 and that his share was one-half or $5,000, from which was to be deducted the sum of $600 due by the plaintiffon the settlement, leaving $4,400, the clear balance coming to the plaintiff as his share of the profits. So far the complaint shows only an indebtedness by the defendant to the plaintiff arising out of contract But he further alleges that while he consented that the options might be taken in the defendant's name, upon the assurance of the latter that it would facilitate the sale of the land and would not affect the stipulation as to the equal division of the profits, yet he now believes that all this was done with the intent to cheat and defraud him, and that the sale of the options by the defendant without the knowledge of the plaintiff, and without disclosing the fact to him was made with a like intent and, further, that the false representation by which he procured the receipt for $250 was also fraudulent, and made in furtherance of the original and continuing intent to deprive the plaintiff of his just and equitable share of the profits, the plaintiff being at the time the defendant got the receipt an illiterate man. The plaintiff took a judgment for the amount due him as his share of the profits and interest from May 1, 1903, the time they were received by the defendant, upon an issue which finds that the defendant is "indebted" to him in that amount "by reason of the matters alleged in the complaint." We have already held (140 N. C. 288, 52 S. E. 641), that the defendant could be arrested under an ancillary order and committed unless he should give an undertaking conditioned, as provided by the statute, to render himself amenable to the process of the court, during the pendency of the action and to such as may be issued to enforce the judgment But this is quite a different thing from imprisoning him under final process until he pays the debt or otherwise discharges himself from custody. The only provisions of the law relating to arrest and bail which can have any possible _vbear-ing on this case are substantially as follows: A defendant may be arrested where, as factor, agent, broker, or fiduciary he receives money or property, and embezzles or fraudulently misapplies it or where he is guilty of fraud in contracting the debt or incurring the obligation for which he has been sued or when the action is brought to recover damages for fraud or deceit. Revisal 1905, § 727. It is provided that an execution against the person of the judgment debtor shall not be issued, unless an order of arrest has been served, as provided by law, or unless the complaint contains a statement of facts showing one or more of the causes of arrest enumerated in the statute, "whether such statement of facts be necessary to the cause of action or not" Revisal 1905, § 625.

The Constitution provides that "there shall be no imprisonment for debt in this state, except in cases of fraud." Article 1, § 16. This, we think, clearly means that there shall at least be no imprisonment to enforce the payment of a debt under final process, un less it has been adjudged upon an allegation duly made in the complaint and a corresponding issue found by a jury that there has been fraud. Whether the fraud to which that section refers is one that is committed in contracting the debt, or extends to one that is collateral to it such as the fraudulent concealment or disposition of property to evade the payment of the debt is a question we need not now consider, though discussed by counsel. Whatever may be the nature of the fraud, it must be alleged and proved as any other issuable fact, and it is safer and better that, when it is found by the jury to exist it should be recited in the judgment with a proper order or direction as to the issuing of executions to enforce the latter. The defendant is entitled in any event to have a finding by the jury upon this important allegation, before there can be any judgment that will warrant the issuing of an execution against his person. In regard to this question, we adopt the view taken by the court in Davis v. Robinson, 10 Cal. 411, where Judge Field (since a Justice of the United States Supreme Court) said: "There is no doubt as to the correctness of the position that the execution must be...