55 S.E. 969 | N.C. | 1906
Lead Opinion
This is a petition for a habeas corpus by the defendant, in which he asks to be discharged from an arrest made by the (528) Sheriff under an execution against his person issued in the above-entitled case, heard by W. R. Allen, J., at chambers, on 6 August, 1906, and he was discharged.
It is alleged that the parties were equal partners in a transaction by which in 1900 and 1901 they secured options for the purchase of certain land situated in the State of Georgia, which defendant took in his own name for their joint use and benefit and which were renewed from time to time. The defendant sold the options for $10,000 in 1903, concealed the real amount of the proceeds of the sale and paid the plaintiff only $250, falsely stating to him at the time that the said sum represented his share of the proceeds, and upon the faith of that statement the plaintiff accepted the $250 and gave his receipt for the same in full satisfaction of his share. A much larger amount was due, and this action was brought to recover the balance. The plaintiff filed an affidavit alleging the above facts, and obtained an order of arrest under which the defendant was taken in custody. He moved to vacate the order, and his motion was allowed byNeal, J., 28 October, 1905. An appeal was taken to this Court by the plaintiff, and at Fall Term, 1905, the ruling was reversed and the case remanded, 140 N.C. at page 288, to which we refer for greater certainty. The case was before us on a prior appeal,
The issue submitted to the jury and the answer thereto were as follows: "In what amount, if any, is the defendant indebted to the plaintiff by reason of the matters alleged in the complaint? Ans.: $4,225, with interest from 1 May, 1903." The Court adjudged simply that the plaintiff recover of the defendant the said sum and his costs, to be taxed by the Clerk. The execution on this judgment against the property of the defendant having been returned unsatisfied, the Clerk, (529) without any order from the Court, issued an execution against the person of the defendant under which he was arrested and afterwards discharged by Judge Allen as above stated. From the order discharging him, the plaintiff appealed. The plaintiff alleges that the *400 defendant collected the proceeds of the sale of the options, which amounted to $10,000, and that his share was one-half or $5,000, from which was to be deducted the sum of $600 due by the plaintiff on the settlement, leaving $4,400 the clear balance coming to the plaintiff as his share of the profits. So far the complaint shows only an indebtedness by the defendant to the plaintiff arising out of contract. But he further alleges that while he consented that the options might be taken in the defendant's name, upon the assurance of the latter that it would facilitate the sale of the land and would not affect the stipulation as to the equal division of the profits, yet he now believes that all this was done with the intent to cheat and defraud him, and that the sale of the options by the defendant without the knowledge of the plaintiff and without disclosing the fact to him was made with a like intent, and further that the false representation by which he procured the receipt for $250 was also fraudulent and made in furtherance of the original and continuing intent to deprive the plaintiff of his just and equitable share of the profits, the plaintiff being at the time the defendant got the receipt an illiterate man. The plaintiff took a judgment for the amount due him as his share of (530) the profits and interest from 1 May, 1903, the time they were received by the defendant, upon an issue which finds that the defendant is "indebted" to him in that amount, "by reason of the matters alleged in the complaint."
We have already held (
The Constitution provides that "there shall be no imprisonment for debt in this State, except in cases of fraud." Art. I, sec. 16. This, we *401 think, clearly means that there shall at least be no imprisonment to enforce the payment of a debt under final process, unless it has been adjudged, upon an allegation duly made in the complaint and a corresponding issue found by a jury, that there has been fraud. Whether the fraud to which that section refers is one that is committed in (531) contracting the debt, or extends to one that is collateral to it, such as the fraudulent concealment or disposition of property to evade the payment of the debt, is a question we need not now consider, though discussed by counsel. Whatever may be the nature of the fraud, it must be alleged and proved as any other issuable fact, and it is safer and between that when it is found by the jury to exist, it should be recited in the judgment, with a proper order or direction as to the issuing of executions to enforce it. The defendant is entitled in any event to have a finding by the jury upon this important allegation, before there can be any judgment that will warrant the issuing of an execution against his person.
In regard to this question, we adopt the view taken by the Court inDavis v. Robinson,
There should be a separate and distinct issue submitted to the jury as to any fraud alleged, unless the cause of action is of such a nature that the questions of debt and fraud can be tried in one issue, so as to have a clear and intelligible finding as to each of them. Such a case will rarely, if ever, be presented, but we do not at the present undertake to say that an issue in that form would not be proper. It is better practice, though, to have the fraud found as a fact, under an issue by itself, or separate from that as to the debt. We think the dictum in Peebles v. Foote,
The constitutional right of trial by jury shields the defendant from arrest under an execution against his person unless, in actions of debt, an issue of fraud has been found against him and a judgment entered in conformity therewith. We so hold, and must refuse to follow Patton v.Gash,
We conclude this branch of the case with the language of Pearson, C. J., in Claflin v. Underwood,
As our opinion is against the plaintiff in this appeal, it is not imperative that we should decide the question, whether an appeal is the proper remedy for the review of the Judge's decision upon the habeascorpus or whether the matter should have been brought before us by acertiorari. The question was not much pressed upon our attention, and we advert to it merely for the purpose of suggesting that a careful amendment of the statute relating to proceedings in habeas corpus
with a view of affording a speedy and effective method of reviewing such proceedings in this Court would tend often to promote justice by simplifying the remedy and facilitating its use. It should, of course, be done cautiously so as not to defeat the object of the law in other respects, or to delay its administration in the courts. For the purpose of reaching the merits of the case and deciding upon them, we may at least treat this proceeding as in the nature of a motion in the cause to recall the execution and to discharge the defendant, the denial of which motion would be reviewable by appeal. Such a motion was made and entertained in Houstonv. Walsh,
It would seem that habeas corpus will lie where it appears from the judgment roll that the Court had no jurisdiction to issue an execution against the person. 17 Cyc., 1520; 21 Cyc., 324; Claflin v. Underwood,
This disposes of the plaintiff's appeal in this case adversely to his contention.
No Error.
PLAINTIFF'S APPEAL.
Addendum
After the defendant had been discharged upon habeas corpus by JudgeAllen, his sureties surrendered him and he sued out another writ before the same Judge and was again discharged. It may be doubtful if the sureties could surrender their principal after he had once been discharged upon the ground that he was not amenable to arrest and imprisonment under an execution issued against him in the same cause. But however this may be, our ruling in the other appeal is decisive of this one. If the defendant was not originally liable to arrest, he surely cannot be held even upon a surrender of him by his sureties.
No Error. *405
Addendum
The defendant was ordered to appear before the Clerk and be examined in a supplementary proceeding. He moved to dismiss the proceeding, as another of a like kind and instituted for the same purpose before the Judge was then pending on appeal to this (537) Court. The Clerk refused to dismiss, and the defendant excepted and prayed an appeal, which was also refused. He then obtained an order from Judge Allen to the Clerk requiring him to certify the record to the Superior Court in order that the matter might be reviewed by him as upon appeal, and to stay all action until it could be heard. The record was accordingly certified and the case came on to be heard by JudgeAllen, who was of the opinion that the plea of former proceeding for the same cause pending and undetermined was a valid objection to the examination of the defendant, as full relief could be had in that proceeding. The Judge held that the ruling of the Clerk was erroneous, and ordered that the proceeding be dismissed. The plaintiff excepted, and appealed to this Court. We do not understand why this decision was not correct. If it was not, then it follows that the defendant might be vexed by any number of proceedings of the same kind, when one would fully and completely answer the purpose of the plaintiff. This is not a question as to the competency of testimony or the qualification of a witness, but it involves the right of the Clerk to proceed at all, under the circumstances. The cases relied on by the plaintiff's counsel are not in point. In Brucev. Crabtree,
No Error.
DEFENDANT'S APPEAL.
Addendum
When Judge Allen dismissed the proceeding then pending before the Clerk, he required the defendant to give an undertaking in the sum of $1,000 to appear at a time designated, for the purpose of being examined, should his order dismissing the proceeding be reversed, the said undertaking to take the place of the one on file, which was ordered to be canceled. If there was danger of the defendant leaving the State, and it appeared that he had property which he had unjustly refused (539) to apply to the satisfaction of the judgment, the Judge had the power to require him to give security for his appearance, and this is all he did. Revisal, sec. 671. What effect our decision in the plaintiff's appeal from the order dismissing the supplementary proceeding will have upon the undertaking, as security to the plaintiff, we need not now determine.
No Error.
Cited: Copeland v. Fowler,