67 N.C. 459 | N.C. | 1872
The case turns upon the construction of sec. 265, C. C. P. If this section stood alone, we should be inclined to restrict its operation to cases where there was a single judgment debtor, and to hold that it did not apply to cases where there are several debtors in the same judgment.
It is the right of every creditor to have the debt paid to him; and a law, authorizing the debt to be paid to another person without the consent of the creditor, is in derogation of this common right, and is to be construed strictly. Of this character is the law in reference to attachment, and garnishment in cases of non-resident and absconding debtors. The section under consideration extends the principle and introduces a provision for a voluntary garnishment; where the judgment debtor is neither a non-resident or an absconding debtor, and without any allegation of fraud.
For these considerations, as the section is worded in the singular number "any person indebted to the judgment debtor, etc.," the Court would hardly, if the section stood alone, feel at liberty to extend its operation by adding the words "or to any one of several debtors in the same judgment;" for, such extension might in many cases result in much inconvenience and injustice to some of the several debtors in the same judgment. For instance, a judgment on a guardian bond and levy on the principal; a debtor of one of the sureties pays to the sheriff the amount of the execution, and thus discharges the levy and deranges the order of liability. Any one can see the consequences that this officious and voluntary payment to the sheriff, instead of to the creditor, may lead to.
But the construction of this section is put beyond all doubt, by taking it in connection with sections 264 and 266. (462)
"When an execution against property of the judgment debtor or any one ofseveral debtors in the same judgment," etc.; sec. 264, paragraph 1. This has reference to cases where the execution has been returned "unsatisfied." "After the issuing of an execution against property, on affidavit, etc., that any judgment debtor has property which he unjustly refuses to apply, the Court or Judge may by order require the judgment debtor, etc;" paragraph 2. This has reference to cases where the execution is in the hands of the sheriff.
"After the issuing of execution against property any person indebted to the judgment debtor may pay to the sheriff, etc.," sec. 265. This, like paragraph 2 of sec. 264, has reference to cases where the execution is in the hands of the sheriff. These contemplate cases where there is a single judgment debtor, and the words "or any one of several debtors *336 in the same judgment," in paragraph 1, sec. 264, are omitted. It must be taken that the words were omitted on purpose, and the Court is not authorized to supply them, or to give to sec. 265 the same operation as if the words had been used. Again, "After the issuing or return, if an execution against property of the judgment debtor, or of any one of severaldebtors in the same judgment," etc.; sec. 266. Here the words are set out, and the section is made applicable to cases where there are more than one judgment debtor. This makes the question of construction too plain to admit of further discussion.
PER CURIAM. Venire de novo.
Cited: Weiller v. Lawrence,
(463)
