Oakley v. Lasater
| Decision Date | 27 September 1916 |
| Docket Number | 129. |
| Parties | OAKLEY v. LASATER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Chatham County; Lyon, Judge.
Action by John B. Oakley against Charles L. Lasater. Judgment for plaintiff, and defendant appeals. Modified.
R. H Hayes, of Pittsboro, for appellant.
H. A London & Son and Fred W. Bynum, all of Pittsboro, for appellee.
The verdict finds that the defendant "negligently" injured the mule of the plaintiff. The allegation in the complaint is that the injury was done "wrongfully recklessly, and wantonly and after being forbidden by the plaintiff's agent."
This allegation of the complaint was denied in the answer and the issue submitted without exception is: "Did the defendant negligently injure the mule of the plaintiff?" There is no evidence sent up in the record. We must take it therefore that the evidence justified the issue.
The judgment that an order of arrest should "issue against the person of the defendant" should not have been granted, and should be reformed by striking out such an order.
Revisal, § 727 (1), authorizes an arrest and holding to bail, among other cases, "where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property, real or personal."
Revisal, § 625, authorizes an execution against the judgment debtor "if the action be one in which the defendant might have been arrested." In such case the person arrested cannot be discharged after judgment, except "by payment or giving notice and surrender of all property in excess of $50." Code, § 2972 [[now Revisal, § 1918a]. Fertilizer Co. v. Grubbs, 114 N.C. 470, 19 S.E. 597; State v. Williams, 97 N.C. 415, 2 S.E. 370. The effect of an execution against the person therefore is to deprive the defendant in the execution entirely of his homestead exemption and of any personal property exemption over and above $50.
In Dellinger v. Tweed, 66 N.C. 206, often affirmed since, Gill v. Edwards, 87 N.C. 76, and other cases in Anno. Ed., it is held that the homestead and personal property exemption can be asserted against a judgment in an action of tort. We think, therefore, that an execution against the person which would deprive the defendant of his homestead and personal property exemption cannot issue where the judgment is for an injury sustained by negligence or accident, but only when the injury has been inflicted intentionally or maliciously; that is, there must be some element of violence, fraud, or criminality. This is the true dividing line between those cases which affirm Dellinger v Tweed and those which seem to depart from it. For instance, in Moore v. Green, 73 N.C. 394, 21 Am. Rep. 470, the defendant was held in an action for libel. In Long v. McLean, 88 N.C. 3, the action was for wrongfully taking and converting personal property. In Kinney v. Laughenour, 97 N.C. 325, 2 S.E. 43, the action was for...
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