Lockhart v. Bear
| Decision Date | 23 December 1895 |
| Citation | 23 S.E. 484,117 N.C. 298 |
| Parties | LOCKHART v. BEAR. |
| Court | North Carolina Supreme Court |
Appeal from superior court, New Hanover county; Hoke, Judge.
Action by J. L. Lockhart against Solomon Bear. From a judgment for defendant, plaintiff appeals. Reversed.
Thomas W. Strange, for appellant.
Shepherd & Busbee and J. D. Bellamy, Jr., for appellee.
The plaintiff brings this action, and files the following complaint: (1) That on or about the 1st day of June, 1893 the defendant, Solomon Bear, with the purpose and intent of extorting from the plaintiff an order upon one J. M. Wright for the payment to him of the sum of two hundred and sixty-four and, 85/100 dollars, claimed by him to be due and owing to him by plaintiff, but which plaintiff denied, out of the proceeds of an insurance policy assigned by plaintiff to the said Wright, threatened the plaintiff with arrest and imprisonment unless he gave him said order, and, upon his refusing to do so, made an affidavit in which he falsely alleged that plaintiff was about to remove himself and property from this state, with intent to defraud his creditors, and sued out writ of arrest and bail, for the alleged purpose of detaining the plaintiff in this state to answer such a judgment which he (the defendant) might obtain in a suit then instituted by him to recover the alleged debt before stated, and which, as aforesaid, was denied; and upon said writ he had the defendant arrested, deprived of his liberty, and incarcerated in the common jail of New Hanover county for the period of six days and nights. (2) That, at the time the defendant made said affidavit and sued out said writ, he well knew that plaintiff was insolvent, and that he could not collect this debt even if it existed, or any other debt, by a judgment against him, and by detaining him here for that alleged purpose, and that the only way he could collect the said disputed debt was by forcing this plaintiff through fear of arrest, to give the said order, which plaintiff had refused to do; and plaintiff alleges, and so charges, that the defendant sued out said writ, and used it not for the purpose set forth therein or commanded by the exigency of the writ, but for the illegal and malicious purpose of compelling him (the plaintiff), as aforesaid, through the fear of imprisonment, either to pay the amount of a disputed debt to him in cash, or to give him the said order upon the said J. M. Wright; and the plaintiff charges that, by so doing, he perpetrated a fraud upon the court, and abused its process, to the discredit of the court and the law, and to the great wrong and injury of the plaintiff. (3) That the plaintiff was arrested at night, and, when taken to the jail, found there awaiting him the defendant, Bear, who told him that, if he would give the said order to him, he would have him released, but otherwise he must be locked up for the night; and, upon plaintiff's refusing to do this, the defendant directed the sheriff to proceed, and the plaintiff was locked up in a common cell used to imprison criminals and other violators of the law. (4) That instead of ordering said arrest in the daytime, when plaintiff might have sought for some one to bail him and prevent his going to jail, the defendant waited to order the arrest until late at night when he knew plaintiff, being a stranger, could not procure a bond, and would therefore be compelled either to comply with his demand or spend the night in a felon's cell; and plaintiff alleges that he could not procure any bail that night, nor until the expiration of six days and nights thereafter, being a comparative stranger in the city of Wilmington, and having few friends there; and that for the space of six days and nights he was compelled to endure the pain, mortification, and mental anguish of the disgrace of imprisonment in a common jail, and the deprivation of his liberty. Wherefore plaintiff demands judgment against the defendant--First, for five thousand dollars, damages for the wrong and injury done to him by plaintiff's illegal and nefarious acts; second, for five thousand dollars, punitive damages for his violation and abuse of the law; third, for the costs of this suit." To which defendant demurred ore tenus. The court below sustained the demurrer, upon the ground that it did not state a cause of action, and plaintiff appealed. In this ruling there is error.
The demurrer admits the allegations of the complaint to be true; and it was admitted by defendant's counsel, on the argument, that the money in Wright's hands was all that defendant knew of plaintiff's having, and that this sum was less than $500. Section 16, art. 1, of the constitution of the state declares: "There shall be no imprisonment for debt in this state except in cases of fraud." Section 1, art. 10, declares: "The personal property of any resident of this state to the value of $500 *** shall be, and is hereby, exempted from sale under execution or other final process of any court issued for the collection of any debt." Code, c. 59, § 3765, subsec. 6. And, though it is not as distinctly stated as it might have been, we think it sufficiently appears from the complaint that plaintiff was a resident of the state at the time the warrant was sued out and plaintiff arrested. It states that defendant's affidavit alleged "that plaintiff was about to remove himself and property from the state." This, we think, clearly implies that plaintiff was a resident of the state. The term "remove himself from the state" would have been improperly used had he not been at that time a resident. Besides, the admissions in defendant's answer should have been considered for jurisdictional purposes in aid of plaintiff's complaint. Wilson v. Sykes, 84 N.C. 215; Johnson v. Finch, 93 N.C. 205; Puffer v. Lucas, 101 N.C. 281, 7 S.E. 734. And the answer states: "That, on one occasion, one of the parties [that defendant sent to collect his debt] went to the store where the plaintiff did business, and where he lived." So, if there was any doubt left in the statement of the complaint as to the plaintiff's being a resident of the state at the time of the warrant and arrest, we think that is supplied by the defendant's answer.
Whatever conflicts there may appear to be in the opinions of this court as to when the homestead exemption commences, what is an abandonment, and when it terminates, can have no influence on this question. They are, as to the homestead, real estate. But as to personal property, under section 1, art. 10, of the constitution, $500 worth is absolutely free from any and all process for the collection or the enforcement of payment of debt. The creditor has no lien upon this amount of his debtor's personal property; nor can he have unless it is created by the debtor himself. There is no judgment lien that attaches; there is no lien by execution until levy, and there can be no levy on this. So it is absolutely free from all process for debt.
It may be claimed, and is claimed, that plaintiff was not entitled to this protection until it was laid off and allotted and assigned to him. We do not think so. It is not the allotment of the appraisers that gives the debtor this protection, but the vigor and force of the constitution. And, if it should be levied before, the debtor is still entitled to have it laid off and assigned to him. This doctrine may not apply in matters of attachment, where it is alleged the defendant has left the state, and lost his right of protection, for the reason that it is personal, attaches to and follows the person wherever he may wish to take it, and he may dispose of it as he pleases, free from any and all claims of creditors. But we are now considering and treating the case before us and not what may be exceptions; and as it is...
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