Wierse v. Thomas

• Citation: 145 N.C. 261,59 S.E. 58
• Parties: WIERSE . v. THOMAS et al.
• Decision Date: 23 October 1907
• Court: United States State Supreme Court of North Carolina

59 S.E. 58
145 N.C. 261

WIERSE .
v.
THOMAS et al.

Supreme Court of North Carolina.

Oct. 23, 1907.

[59 S.E. 58]

1. Exemptions — Injunction — Proceedings in Courts op Another State—Evasion of Exemption Laws.

A resident of this state may be enjoined from prosecuting an action in another state for the purpose of evading the exemption laws and subjecting property to the payment of his debt protected by the Constitution and general exemption laws of the state, and also by Code, § 493 (Revisal 1905, § 678), exempting wages due for personal services rendered within 60 days prior to the levy.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Exemptions, § 168.]

2. Same—Constitutional Law—Full Faith and Credit.

An injunction so issued is not in violation of Const. U. S. art. 4, § 1, requiring full faith and credit to be given in each state to the judicial proceedings of every other state.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 23, Exemptions, § 168.]

3. Constitutional Law — Privileges and Immunities of Citizens.

An injunction so issued is not in violation of Const. U. S. art. 4, § 2, providing that the citizens of each state shall be entitled, to all the privileges and immunities of citizens in the several states.

4. Exemptons—Persons Entitled—Removal from State.

Where a debtor ceased to be a resident of the state before property belonging to him became applicable to a creditor's claim, the general exemption laws of the state do not operate in his favor.

Appeal from Superior Court, New Hanover County; E. B. Jones, Judge.

Action by Paul Wierse against Bettie S. Thomas, trading as Thomas & Co., and the Atlantic Coast Line Railroad Company, to restrain attachment proceedings in another state to subject an indebtedness to plaintiff from the Atlantic Coast Line Railroad Company to the payment of an indebtedness due defendant Thomas & Co. From a judgment continuing the restraining order to the hearing, Thomas & Co. appeal. Affirmed.

The court found the facts to be as follows: "That the plaintiff, at the date of the institution of these proceedings, was a resident of North Carolina, the defendant Thomas & Co. resident of North Carolina, and the defendant corporation, having its principal place of business at Wilmington, N. C, operating a railroad in Virginia, North Carolina, South Carolina, and Georgia. Plaintiff and the other defendant reside in Wilmington, N. C. That at said date plaintiff was a resident having a family residing in Wilmington, where plaintiff worked as an employe of defendant company. That on the —— day of May, 1906, defendant Thomas & Co. sent an account against plaintiff for collection to Atlanta, Ga., where an attachment was issued against plaintiff in a justice's court, levying upon the indebtedness of Atlantic Coast Line Railroad Company to plaintiff; such action not being prosecuted further by reason of the restraining order issued in this cause. That the amount of indebtedness due by the defendant company to plaintiff was $70, being for his personal services rendered within 00 days prior to said levy, and said sum is necessary for support of said debtor and his family, supported by him. That the debt claimed by Thomas & Co. against plaintiff is just and correct and was then due"—and thereupon adjudged that the restraining order be continued to the hearing, and defendant Thomas & Co. excepted and appealed.

R. G. Grady, for appellant.

J. D. Bellamy, for appellee.

HOKE, J. (after stating the facts as above). At the time this action was commenced, and the Georgia attachment was levied, the property attached was protected both by the personal property exemption provided for by the Constitution and the general exemption laws of the state and also by section 493 of the Code. Section 678 of the present Revisal, prohibiting wages due for personal services of the debtor rendered within 60 days prior to the levy, and necessary for the use of the family, which was supported by his labor, from being subjected and applied to the laborer's indebtedness; and, this being true, on the facts established the judge correctly ruled that the restraining order be continued to the hearing. As stated in 12 Amer. & Eng. Encyclopedia, p. 250: "It may be regarded as settled that a court of equity has jurisdiction to enjoin a resident creditor from instituting or prosecuting an action or proceeding in another state for the purpose of evading the exemption laws of his state and of collecting his claim by subjecting to its satisfaction property or credits which the debtor could claim as exempt if the action or proceeding were brought within the state; and in such a case an injunction should generally be granted." And the doctrine so stated is grounded in right reason and fully sustained by authority. Dehon et al. v. Foster, 86 Mass. 545; Teager v. Landsley et al., 69 Iowa, 725, 27 N. W. 739; Engle v. Scheuerman, 40 Ga. 206, 2 Am. Rep. 573; Keyser v. Rice, 47 Md. 203, 28 Am. Rep. 448; Snook v. Snetzer, 25 Ohio St. 516; Waples on Homestead Exemptions, pp. 888, 889.

It is objected chiefly that an injunction on the facts before us is in violation of article 4, § 1, of the federal Constitution, providing that in each state full faith and credit shall be given to the judicial proceedings of every other state, etc., and section 2 of the same article, providing that citizens of each state shall be entitled to all the privileges and immunities of the several states. This view is fully...