Stump v. Long

• Decision Date: 31 January 1881
• Citation: 84 N.C. 616
• Court: North Carolina Supreme Court
• Parties: A. H. STUMP & SONS v. L. B. LONG.

84 N.C. 616

A. H. STUMP & SONS

v.L. B. LONG.

Supreme Court of North Carolina.

January Term, 1881.

MOTION to set aside a judgment (under the Code, § 133) heard at Fall Term, 1880, of MECKLENBURG Superior Court, before Seymour, J.

The motion was allowed and the plaintiffs appealed.

Messrs. Wilson & Son, for plaintiffs .

Messrs. Shipp & Bailey, for defendant .

RUFFIN, J.

This was a motion of the defendant, L. B. Long, made under section 133 of the Code to be relieved of so much of a judgment rendered in the cause as deprived him of his personal property exemption. The following are the facts, which we state, not that we can review His Honor's findings as to them, but that it may be seen whether his ruling upon the facts, as found, is correct.

The plaintiffs having recovered two justice's judgments against the defendants, Long and Johnston, partners under the firm name of L. B. Long & Co., caused them to be docketed in the superior court on the 13th of January, 1880; and after issuing executions which were returned unsatisfied, they commenced supplemental proceedings before the clerk, who on the 17th of January, 1880, issued an order to the two defendants, Long and Johnston, to appear before him on a day fixed and answer concerning their property, and to bring with them all their books of accounts and all books showing what amounts were due individually, as well as members of the firm, and in the mean time forbidding them to dispose of any part of their property. On the 22d of January the clerk made another order, which after reciting the steps previously taken in the matter, proceeds as follows: “I do hereby order, by consent of parties, that E. K. Osborne be appointed receiver of all the estate and property of every kind of L. B. Long & Co., and that said receiver be invested with all rights and powers as receiver according to law and that he proceed to collect the accounts due and owing the defendant copartnership, and apply the same to plaintiffs' claims; and further that the said defendant turn over to said receiver all the estate, property and effects of the said firm.”

On the 25th day of March following, after having given due notice to the plaintiffs, the defendant, Long, moved the clerk to so modify his last order as to provide for his personal property exemption out of the firm property, and he accompanies his motion with an affidavit in which he swears that so much of the order as either expressly or by implication purports to be a waiver of his right to have such exemption was unauthorized by him, and against his express desire that the same should be allowed him, that he was not present when the order was agreed to or signed, and if his counsel understood him as agreeing to it, while he imputed to him perfect good faith, he misunderstood him; that in anticipation of being allowed to have such exemption, he had the very day before the examination began procured his partner's written assent thereto; that he was advised by his counsel that the appointment of a receiver in the case could not affect his right to have it allowed, and therefore he assented that such appointment might be made; but that was as far as he intended to go, and that he did not authorize his counsel to waive his claim to his exemptions, and that he had no knowledge of the same being done for several days afterwards, when he and his counsel went to the clerk's office to look after his exemptions, when they discovered that the order had been so drawn as to exclude him; that he never did, and never intended to consent to any order by which he surrendered the right given him by law. To this the plaintiff filed the...