Roulhac v. Brown
| Decision Date | 31 October 1882 |
| Citation | 87 N.C. 1 |
| Court | North Carolina Supreme Court |
| Parties | A. K. ROULHAC, Ex'r, v. WM. GARL BROWN. |
OPINION TEXT STARTS HERE
APPEAL from an order made at Fall Term, 1882, of ORANGE Superior Court, by Graves, J.
This appeal presents but one question for consideration, and that is whether a motion to vacate an order of arrest can be entertained after a similar motion had been made in the progress of the cause, upon the same grounds, and refused.
The action in which the motion was made was commenced by summons on the 5th day of September, 1881, and a complaint was filed the same day. The plaintiff also obtained an order of arrest on the same day returnable before the clerk of the superior court on the 4th day of October, 1881, which was duly executed, and on that day the defendant moved to vacate the order of arrest, and reduce the bail, which after being heard by the clerk was refused, and the defendant appealed to His Honor Judge Gudger, at fall term, 1881, of the superior court for said county, who heard all the matters involved in the motion upon the affidavit of the plaintiff, the counter-affidavit of the defendant, and opposing affidavit offered by plaintiff; and, after argument of counsel for both parties, sustained the decision of the clerk and refused to vacate the order of arrest or reduce the bail.
The defendant thereupon prayed an appeal to this court, but afterwards withdrawing his appeal gave an undertaking with security acceptable to the plaintiff, filed a demurrer to the complaint, and the cause was continued to spring term, 1882. At that term, the defendant appeared and was surrendered by his bail into the custody of the sheriff, withdrew his demurrer, and confessed judgment for the amount claimed in the complaint, which was duly entered.
A motion was then made by the defendant's counsel to discharge the defendant from custody, upon the ground that no allegations of fraud were set forth in the complaint.
After argument of counsel His Honor dismissed the motion, assigning as reasons for doing so, that it appeared from the order heretofore made, that a motion to vacate the order of arrest and reduce the amount of bail had been made at the preceding term, and denied by Judge Gudger, and that no appeal had been taken from said order, and that in the affidavit apon?? which the order was made there was an allegation of fraud in attempting to evade the performance of obligations, &c., by concealing property, and, also that the motion then made was similar in effect to a motion to vacate the order of arrest, and should have been made before judgment taken in the action.
Mr. John W. Graham, for plaintiff .
No counsel for defendant.
ASHE, J., after stating the above.
We are unable to discover any error in the ruling of His Honor, or in the reasons assigned for his conclusion. The motion to discharge the defendant from custody was in effect a motion to vacate the order of arrest, which is the only means provided by which a defendant under arrest under such circumstances can obtain his deliverance, and that...
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State v. Davis
...Co., 172 N.C. 529, 90 S.E. 501; May v. Lumber Co., 119 N.C. 96, 25 S.E. 721; Henry v. Hilliard, 120 N.C. 479, 27 S.E. 130; Roulhac v. Brown, 87 N.C. 1; State Evans, 74 N.C. 324. 8. We have not held that a judge of the superior court at chambers may grant stay of execution pro forma in crimi......
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State v. Davis
...Co., 172 N.C. 529, 90 S. E. 501; May v. Lumber Co., 119 N.C. 96, 25 S. F. 721; Henry v. Hilliard, 120 N.C. 479, 27 S. E. 130; Roulhac v. Brown, 87 N.C. 1; State v. Evans, 74 N.C. 324. 8. We have not held that a judge of the superior court at chambers may grant stay of execution pro forma in......
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North Carolina Corporation Commission v. United Commercial Bank
...Judge of the Superior Court previously made in the cause, except in certain well defined cases which have no application here. Roulhac v. Brown, 87 N.C. 1; Henry v. Hilliard, 120 N.C. 479, 27 S.E. Davis v. [Federal] Land Bank, 217 N.C. 145, 7 S. E.2d 373. No appeal lies from one Superior Co......
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North Carolina Corp. Comm'n v. Bank
...Judge of the Superior Court previously made in the cause, except in certain well defined cases which have no application here. Roulhac v. Brown, 87 N.C. 1; Henry v. Hilliard, 120 N.C. 479, 27 S.E. 130; Davis v. [Federal] Land Bank, 217 N.C. 145, 7 S. E.2d 373. No appeal lies from one Superi......