{
  "id": 8695108,
  "name": "JAMES B. DANIEL v. THOMAS M. OWEN",
  "name_abbreviation": "Daniel v. Owen",
  "decision_date": "1875-01",
  "docket_number": "",
  "first_page": "340",
  "last_page": "344",
  "citations": [
    {
      "type": "official",
      "cite": "72 N.C. 340"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "JAMES B. DANIEL v. THOMAS M. OWEN."
    ],
    "opinions": [
      {
        "text": "Peabson, C. J.\nThe plaintiff obtained judgment by default against the defendant for a debt, sued out execution and had it levied on land. The defendant obtained a restraining order on the ground of a variance between the judgment and the execution. The restraining order was discharged upon the plaintiff\u2019s agreeing to correct the execution by making it conform to the judgment. Thereupon the defendant, on affidavit, moved to vacate the judgment on the ground of inadvertence, &c., under section 133, C. C. P. This motion was not allowed. Thereupon the plaintiff moved that the defendant be ordered t\u00a9 pay the amount of the judgment into Court, and on his failure, that an attachment issue for coutempt in pursuance to tlie statute \u201c Concerning Contempt,\u201d Battle\u2019s Revisa], chap. 24, sec. 1, sub-division 4, \u201c Wilful disobedience of any process or order lawfully issued by any Court.\u201d\nHis Honor allowed the motion and it was ordered that \u201c the defendant pay into the office of this Court the whole amount due on the judgment aforesaid, (the execution being corrected thereby,) before the expiration of the present term of the Court,\u201d &c., and in case of his failure to make such payment, the Clerk shall issue a writ of attachment commanding the sheriff to take the body of the defendant and keep him in close custody until he shall pay the amount due on the j udgment and all costs, to-wdt, &c.\nThe question is, had his Honor power to make the order requiring the defendant to pay the amount of the judgment into Court? We declare our opinion to be, that this order is void and of no legal effect, and is not a \u201c lawful order,\u201d because of a want of power in the Court to make it.\nUnder the old equity system, the Chancellor had power to order one who held the legal title in trust for another, to execute a deed. So he had power to order a defendant who held a fund in trust, whether it consisted of bonds or of money, to pay \u201c the fund \u201d into Court, to the end that the fund should be put under \u00bfthe protection of the Court. This power, the Court still has under' the new system in all cases where there is the relation of trustee and cestue que trust, and the land or the fund is, in contemplation of a Court of Equity, the property of the plaintiff in an action brought to enforce the equity, and an order made for the execution of a deed or the payment of the fund into Court, is a lawful order within the meaning of the statute above cited.\nIn our case, there is no relation of trustee and eestue que trust, no fund in the hands of the defendant to which the plaintiff has an equitable title, but the relation is that simply of a creditor who has obtained judgment against his debtor, and thereby merged the original debt, into a higher security. But there is no fund to which he is entitled and for the protection of which he can invoke the aid of the Court, the relation is merely that of \u201c creditor and debtor.\u201d\nThe plaintiff can enforce payment of his judgment by a \u25a0writ of \u201cfi, /\u00ab,\u201d and under the old system by a writ of ca, sa, under the new system (by which imprisonment for debt is abolished) by supplemental proceedings, to reach causes in \u25a0action and other intangible interests. If the Court has power in the case of creditor and debtor, when there is judgment to order the defendant to pay the amount of the judgment, into \u2022Court by a day certain under pain of going to jail \u201cwithout bailor maniprise\u201d until he complies with the order, the condition of debtor will be worse than it was before the abolishment of imprisonment for debt, for whereas before he was allowed to give bond for his appearance, and to \u201c swear out\u201d or else to have the benefit of \u201c the prison bounds,\u201d now under an order like that we are considering, he must go to jail and remain in close custody until he pays the defoi!\nSuch is not the law. It has no principle of reason to rest on, and no authority can be found in all the books of reported cases to support it. There is not even a dictum in any of the books, tending to give it countenance.\n\"We would have been at a loss to imagine, how the idea, that the Conrt has any such power ever suggested itself, but for the fact that it appears by the record, that after execution issued upon the judgment and was levied on the land of the defendant, he obtained a restraining order upon what his Honor Unds to have been a \u201c frivolous pretext \u201d because of a slight error in the execution which the plaintiffs counsel was willing \u00a1to have corrected, and when an injunction was refused, he .added to his enormity, a motion to vacate the judgment on .affidavit as to excusable neglect, or inadvertence in failing to put in an answer to the complaint which motion his Honor likewise refused, holding the affidavit to be insufficient. Thereupon his Honor made the order to pay the amount of the judgment into Conrt, &c. It has heretofore been considered, that the offence of making \u201c a sham defence,\u201d was amply dis-eouraged by allowing the plaintiff to take judgment by default, and the offence of obtaining a restraining order was amply discouraged by setting aside the order, at the cost of the defendant, and the offence of moving on affidavit to vacate a judgment on the ground of inadvertence, &c., was amply discouraged by refusing the motion and requiring the defendant to pay costs. Superadded to the fact, that if there be any false swearing in the premises, the party is liable to indictment for perjury. ITow \u201c a sham defence \u201d isa \u201c frivolous pretext \u201d\u25a0 for a restraining order, or a motion to vacate a j udgment, on an affidavit held to be insufficient, can confer upon a Judge the power to order the defendant to pay the amount of the judgment into Court, by a day certain on pain of being sent to-jail and kept closely confined until the judgment is satisfied, is beyond our power of comprehension.\nThere is error. Judgment below reversed, at the cost of plaintiff. This will be certified.\nPee Cueiam. Judgment reversed.",
        "type": "majority",
        "author": "Peabson, C. J."
      }
    ],
    "attorneys": [
      "Tour gee and Gregory, Shipp & Bailey and Stray horn, for appellant.",
      "W. A. Graham., contra."
    ],
    "corrections": "",
    "head_matter": "JAMES B. DANIEL v. THOMAS M. OWEN.\nA Superior Court has no power, under sec. 1, chap. 22, Bat. Rev. to order a defendant to pay into Court on a day certain, the amount of a debt due on a judgment, and in default thereof, to attach such defendant for contempt of Court.\nThe Courts still have power, where the relation of trustee and cestuy que trust exists, to order a fund held in trust to he paid into Court, to the end, that the fund should be put under the protection of the Court. Such an order is a lawful order within the meaning of the statute, and may be enforced by attachment for contempt.\nApplication for an Injuction, tried before Kerr, J., at Fall Term, 18J\u00e9. Obange Superior Court.\nThe defendant moved for an order of inj unction to restrain the plaintiff from collecting the amount due on execution, on account of an alleged error in entering judgment for an excessive amount. A restraining order had been issued on the affidavit of defendant until the hearing.\nThe defendant also moved to set aside the j udgment on account of a breach of agreement on the part of the plaintiff, and accident, mistake and excusable neglect on the part of the defendant.\nThe defendant produced the affidavit on which the restrain-iug order had been granted, and another made before the Clerk of Orange Court. He also produced the original papers in the action, on which the judgment was rendered.\nPlaintiff on his part produced the execution and endorsement thereon, and offered his own affidavit and that of his attorney, William A. G-raham, and a letter from the latter to E. M. Stafford, sheriff of Guilford county, admitting error by inadvertence of the Clerk in issuing execution for too great an amount of interest, and directing that only the true amount due on the judgment should be collected.\nThe Court found the fact to be as stated in the affidavit of the plaintiff and that of his attorney, and overruled both motions of the defendant and dissolved the restraining order with costs.\nOn motion by the plaintiff, his Honor adjudged that unless the defendant should pay the amount of the judgment and cost, and the cost of the proceedings of that term, before the end of the term, he should be attached for a contempt of Court, The defendant excepted.\nTour gee and Gregory, Shipp & Bailey and Stray horn, for appellant.\nW. A. Graham., contra."
  },
  "file_name": "0340-01",
  "first_page_order": 350,
  "last_page_order": 354
}