83 N.C. 102 | N.C. | 1880
The plaintiff in the year 1878 brought an action in the superior court of Northampton county upon the official bond of one Larkins, sheriff of the county of Halifax, against the defendants, his sureties on said bond. The *103 breach assigned was the non-payment of one hundred dollars with interest and costs, which the plaintiff had theretofore recovered as an amercement against said Larkins, for having failed to make due return of process placed in his hands by the plaintiff. The complaint contained a clause as follows: "That he is informed and believes that John M. Foote has disposed of his property with intent to defraud his creditors," and was verified in the usual manner. The defendants made no appearance, and judgment by default was taken against them at spring term, 1879, of said court, for the sum of ten thousand dollars, to be discharged on the payment of the said sum of one hundred dollars with interest, c. Writs of fieri facias were then issued to the counties of Northampton and Halifax, and were returned to fall term, 1879, of Northampton superior court, with the sheriff's endorsement on each — "no property to be found to satisfy this execution." Thereupon a writ of execution against the person of said Foote was issued returnable to spring term, 1880, of said court; and by the authority of the said execution, the sheriff of Halifax county, to whom the writ was directed, executed the same by taking the said Foote into custody. And at said spring term, 1880, upon motion of defendant, Foote, he was discharged from custody by order of the judge, and the plaintiff appealed. The question presented by the record is, whether in a case like this an execution can be issued against the person of a defendant without an order of arrest having been served before the judgment. It is one of those new questions of practice that are constantly and unexpectedly springing up from the code, that unfailing source of so many perplexing questions. *104
The defendant was taken in execution by virtue of section 260 of the code of civil procedure, which reads: "If the action be one in which the defendant might have been arrested, as prescribed in section 149 and section 151, an execution against the person of the judgment debtor may be issued to any county within the state, after the return of an execution against his property, unsatisfied in whole or in part. But no execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 149."
This section has never received a direct interpretation from this court, though there have been several approaches to it. In the case of Hess v.Brower,
In the more recent case of Paige v. Price,
The section (260) under which the defendant was arrested contemplates three classes:
1. Where the cause of arrest is not set forth in the complaint.
2. Where the cause of arrest is set forth in the complaint, *106 but is only collateral and extrinsic to the plaintiff's cause of action.
3. Where the cause of arrest set forth in the complaint is essential to the plaintiff's action.
In the cases falling within the first class, the defendant can only be arrested by an order of arrest founded upon a proper and sufficient affidavit, setting forth the sources of information when it is founded upon information and belief. And no execution in such cases could be issued against the person without such order previously had and served.
In cases of the second class, the statement of the cause of arrest in the complaint will answer in place of an affidavit, but the statement must be as explicit as if set forth in an affidavit and properly verified. But in such cases there must be an order of arrest before execution against the person of the debtor.
In the last class of cases, where the facts stated in the complaint as causes of arrest are essential to or constitute plaintiff's cause of action, there no affidavit for the order of arrest is needed, and no order of arrest is required before an execution may be issued against the person of the defendant, provided the complaint has been properly and sufficiently verified. But a verification upon information and belief will not answer unless it gives the sources of information, c.
Although this court, at the first adoption of the code in this state, was disposed to repudiate the decisions of the courts of New York upon questions of code-practice, and undertook to chalk out an independent practice, we think the decisions of her higher courts may be resorted to in cases of doubtful construction, with great advantage and satisfaction.
In the case of Blossom v. Bruno, 33, Barb., 520, which was a motion to vacate an order of arrest, the court held the affidavit was defective in stating the principal matters relied upon to be on information or belief; where such facts are *107 not within the actual knowledge of the plaintiff or his witnesses, information may be stated; but in such cases the sources of information must be stated, so that the court can see to what extent the information can be relied on. And so it has been there held in several cases (17 How., 481, and 11 Abb., 62) that where the allegations of the causes of arrest are merely collateral and not essential to the plaintiff's cause of action, a judgment by default does not establish such collateral facts sufficiently to justify the issuing an execution against the person of the defendant; and it is further held that an order of arrest would be necessary where the facts justifying an order are set forth in the complaint, but are extrinsic of the cause of action itself, and the defendant suffer default.
We hold that the cause for the arrest, when set forth in the complaint, must be stated with as much explicitness as when set forth in an affidavit.
In our case the action is for a money demand and the allegation set forth in the sixth article of the complaint, namely, "that he is informed and believes that John M. Foote has disposed of his property with intent to defraud his creditors," is a collateral matter and extrinsic of the plaintiff's cause of action. It is in no way essential to the plaintiff's action. The complaint would have been good and complete if that article had been omitted. The case then falls within the second class of cases above mentioned, and the plaintiff has no right to issue an execution against the person of the defendant, Foote, without having first obtained an order of arrest and its service before judgment.
There is no error in the ruling of the court below, and the judgment is affirmed.
No error. Affirmed. *108