50 S.E.2d 670 | N.C. | 1948
The plaintiff, Motor Finance Company, recovered a judgment against the defendant, J. Claude Putnam, an employee of Radio Station WMFD. Execution was issued, and returned unsatisfied. The plaintiff then instituted proceedings supplemental to execution against the Radio Station under Article 31 of the General Statutes, and obtained an order from the *556
Clerk of the Superior Court, requiring R. A. Dunlea, an officer of the Radio Station, to appear before the Clerk at his office in the courthouse on 7 January, 1948, for examination under G.S.
Radio Station WMFD has never had any property of the defendant in its possession, and was not indebted to him in any way when the above order was signed and served. But between 23 December, 1947, and 7 January, 1948, the Radio Station paid $100.00 to Putnam for salary accruing subsequent to 23 December, 1947. The record does not affirmatively disclose that Radio Station WMFD is a legal entity, or what duties were assigned by it to Dunlea. It is assumed here, however, that the Radio Station is a corporation, and that Dunlea had complete charge of its affairs at the times in controversy.
Dunlea appeared before the Clerk at the time and place specified in the order of 23 December, 1947, and was examined on oath by counsel for plaintiff, who thereby discovered that Radio Station WMFD had made the payment of salary set forth above. The plaintiff thereupon moved the Radio Station and Dunlea be attached as for a contempt of court under G.S.
At the hearing, the court found and adjudged in substance that Radio Station WMFD and Dunlea had not disobeyed the order and were not guilty of any contempt. From judgment accordingly, the plaintiff appealed. The order of the Clerk forbade Radio Station WMFD to make any disposition of "the property of J. Claude Putnam not exempt from execution or any debt due to the said J. Claude Putnam until further orders in the premises."
The plaintiff asserts that the Radio Station willfully disobeyed the order by paying to the defendant salary accruing after the issuance and service of the order, and that by reason thereof the court below erred in refusing to punish the Radio Station and its general manager, Dunlea, as for a contempt under G.S.
The plaintiff's position is untenable because the order could apply only to property owned by the judgment debtor, Putnam, or to debts due to him on 23 December, 1947, the day whereon the order was issued and served. This is true for two reasons. In the first place, the order itself, when properly construed, spoke as of that date.
Besides, the order would have been without support in law if it had undertaken to subject to the plaintiff's demands the prospective earnings of the judgment debtor. The order was entered in a proceeding supplemental to execution against a third person, and was predicated upon sections
While there seems to be no decision of this Court upon this precise problem, our conclusion finds full support in the well considered opinions is Osborne v. Wilkes,
Moreover, our statutes concerning proceedings supplemental to execution were adopted from New York, where it has been steadfastly held under the original statutes that "future earnings, wages, or salaries to become due, or which become due after service of the order for examination, cannot be reached by supplementary proceedings." 23 C. J., Executions, section 943, and cases cited. The basis for this ruling is set forth in an exhaustive opinion in Re Trustees of Board of Publication and Sabbath-School Work,
For the reasons given, the order of the Clerk had no application to salary accruing to the judgment debtor after its issuance and service, and the judgment of the court below must be
Affirmed.
