Magruder v. . Shelton

4 S.E. 141, 98 N.C. 545

• Court: Supreme Court of North Carolina
• Decided: September 5, 1887
• Status: Published

Opinion

Davis, J.,

(after stating the case). The defendants say that the affidavit fails to specifjr the property, choses in action, or other thing of value owned by the defendants, which they refuse to apply towards the satisfaction of plaintiffs’ judgment, and for this failure the affidavit is insufficient.

Sub-section 1 of §488 of The Code, authorizes an order requiring defendants to answer concerning their property, upon the return of an execution unsatisfied, and subsection 2 authorizes an order to issue, before the return of the execution, “upon proof by affidavit” that the judgment debtor “has property which he unjustly refuses to apply towards the satisfaction of the judgment.”

Under the old practice, a suit in the County or Superior Court was commenced by a writ, issued by the clerk, which commanded the sheriff “ to take the body of the defendant,” &c., and the defendant was required to give bail for his appearance, &c., and if the sheriff in executing the process failed to require bail, he himself became special bail. The bail was responsible for the appearance of the defendant to satisfy the judgment of the Court; and if he failed to appear, the bail became liable. The liability of the bail, however, did not become final or absolute until after notice, and he might, at any time before final judgment against him, discharge his liability in certain modes, the most usual of which was by a surrender of his principal. The scire facias could be issued to notify the bail after a return of the execution by the sheriff, unsatisfied, without affidavit, and the defendant, being in custody, could only discharge himself by giving notice to the creditor, and filing a schedule containing “an exact account of his estate, and all circumstances relating thereto.”

This schedule had to be on oath, and if sufficient, entitled the defendant to his discharge, and he could not get his discharge until it appeared that he had rendered an accurate schedule of all his property, the title to which (except such as was exempt) vested in the sheriff for the satisfaction of the judgment. No capias ad satisfaciendum could issue, except upon affidavit that the debtor had no property, which could be reached by fieri facias, sufficient to satisfy the judgment, and that he had property, money, or effects which could not be reached, or had fraudulently concealed his property, &c., or was about to remove from the State.

The supplementary proceeding is designed to enable the creditor to reach the same result as was attained by the ca. sa. under the old practice, and in analogy to that practice, it may be that the absence of the requirement of the affidavit to procure the order after the return of the execution unsatisfied, in subsection 1 of section 488, was because it was thought unnecessary. But this Court, in a carefully considered opinion, delivered by Dillard, Judge, in Hinsdale v. Sinclair, 83 N. C., 338, has put a different construction upon the statute, and we accept it as now settled, that in order to obtain the order “three facts must be made to appear by affidavit or otherwise: (1) the want of Icnoiun property liable to execution, which is proved by the sheriff’s return of ‘ unsatisfied;’ (2) the «ow existence of any equitable estate in land within the lien of the judgment, and (3) the existence of property, choses in action, and things of value, unaffected by any lien and incapable of levy.”

Each of these requirements is met by the affidavit in this case. The very purpose of the proceeding is to compel a discovery by an examination of the defendant; and if the scope of the examination were confined, as is insisted, to such “ property, choses in action or other things of value ” as the plaintiff might be able to specify in his affidavit, the supplementary proceeding would be shorn of its chief value.

The affidavit is sufficient, and there is no error.

Affirmed.