{ "id": 8650240, "name": "D. F. KINNEY v. P. F. LAUGHENOUR", "name_abbreviation": "Kinney v. Laughenour", "decision_date": "1887-02", "docket_number": "", "first_page": "325", "last_page": "329", "citations": [ { "type": "official", "cite": "97 N.C. 325" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "83 N. C.. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277097 ], "opinion_index": -1, "case_paths": [ "/nc/83/0102-01" ] }, { "cite": "79 N. C., 35", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684048 ], "opinion_index": -1, "case_paths": [ "/nc/79/0035-01" ] }, { "cite": "88 N. C., 3", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682356 ], "opinion_index": -1, "case_paths": [ "/nc/88/0003-01" ] }, { "cite": "73 N. C., 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693151 ], "opinion_index": -1, "case_paths": [ "/nc/73/0394-01" ] }, { "cite": "80 N. C., 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692041 ], "opinion_index": -1, "case_paths": [ "/nc/80/0313-01" ] }, { "cite": "77 N. C., 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682795 ], "opinion_index": -1, "case_paths": [ "/nc/77/0327-01" ] }, { "cite": "83 N. C.. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277097 ], "opinion_index": 0, "case_paths": [ "/nc/83/0102-01" ] }, { "cite": "79 N. C., 35", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684048 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/79/0035-01" ] }, { "cite": "88 N. C., 3", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682356 ], "opinion_index": 0, "case_paths": [ "/nc/88/0003-01" ] }, { "cite": "73 N. C., 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693151 ], "opinion_index": 0, "case_paths": [ "/nc/73/0394-01" ] }, { "cite": "80 N. C., 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692041 ], "opinion_index": 0, "case_paths": [ "/nc/80/0313-01" ] }, { "cite": "77 N. C., 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682795 ], "opinion_index": 0, "case_paths": [ "/nc/77/0327-01" ] } ], "analysis": { "cardinality": 387, "char_count": 8133, "ocr_confidence": 0.499, "pagerank": { "raw": 2.324618834139015e-07, "percentile": 0.790398783867322 }, "sha256": "8c02e3c30e84634ba87220f7a6bec31e0124d29543a2c9865d087a877e7f6e5f", "simhash": "1:1de10e21c7e35ddb", "word_count": 1432 }, "last_updated": "2023-07-14T18:54:12.215141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "D. F. KINNEY v. P. F. LAUGHENOUR." ], "opinions": [ { "text": "Meebimon, J.,\n(after stating the case). The statute (The Code, \u00a7291, par. 2) provides, that a defendant may be arrested \u201c for seduction,\u201d and it has been held, that this provision is valid, and not in conflict with Art. II., \u00a716, of the Constitution, which provides, that \u201c There shall be no imprisonment for debt, except in cases of fraud.\u201d Damages recovered in an action for seduction do not constitute a debt, in the sense implied by this provision. Moore v. Mullen, 77 N. C., 327; Hoover v. Palmer, 80 N. C., 313; Moore v. Green, 73 N. C., 394; Long v. McLeod, 88 N. C., 3.\n\u25a0 The statute (The Code, \u00a7442) provides, that there may be execution against the person of the judgment debtor, and \u00a7447 prescribes that, \u201c If the action be one in which the defendant might have been arrested, an execution against the \u25a0person 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 secured, as provided in Title IX., sub-chapter 1, of this chapter, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by \u00a7291,\u201d cited above.\nIn this case, it appears that the verified complaint sufficiently alleged a cause of action against the defendant for the seduction of the plaintiff\u2019s step-daughter, and in addition, there was an affidavit upon which and the complaint, a warrant of arrest issued. Upon the judgment obtained, an execution against the property of the defendant issued, and this was returned unsatisfied. A proper execution against the person of the defendant might therefore have been issued. There had been an order of arrest served upon him, and moreover, the complaint contah id a statement of facts showing a cause of arrest. An e* to be such a one, did issue, but it was ini to have commanded the sheriff, or othi directed by the statute (The Code, \u00a7448, | defendant, \u201c and commit him to the jail til he shall pay the judgment, or be dis ition, purporting icient. It ought oroper officer, as 3), to arrest the the county, un-irged, according bo law,\u201d and to make due return of the execution to the \u2022Court, and how he had executed the same. It would have been well, also, in connection with the other recitals in the execution, to have made brief reference to the cause of arrest, although, perhaps, this is not essential in such execution. The party thus arrested must be committed to the jail of the county from which the execution issued. The Code, \u00a7444; Houston v. Walsh, 79 N. C., 35; Peebles v. Foote, 83 N. C., 102.\nIt must be observed, in Houston v. Walsh, supra, that the Chief Justice, in pointing out the defects in the execution referred to in that case, had reference to the statute (Battle\u2019s Rev., ch. 18), suspending the Code of Civil Procedure in certain respects, and not to C. C. P., \u00a7261, par. 3, which provided just as the statute {The Code, \u00a7448, par. 3,) now provides.\nAs the defendant asked the Court to commit him to jail in exoneration of his surety, if the plaintiff had joined in such request, it might have made a proper order so committing him, \u201c until he shall (should) pay the judgment or be discharged, according to law,\u201d but the plaintiff did not ask for such an order. The Court, therefore, properly declined to make it.\nNor was it necessary that the Court should order that an execution issue forthwith against the person of the defendant. The facts being as they appear to us, it was the duty of the clerk, upon application of the plaintiff, or his counsel, to issue a proper execution against the person of the defendant, as indicated above, without an order of the Court. Nothing appearing to the contrary, the plaintiff may yet apply for and obtain such execution.\nThere is no error, and the order appealed from must be affirmed.\nNo error. Affirmed.", "type": "majority", "author": "Meebimon, J.," } ], "attorneys": [ "Mr. M. H. Pinnix, for the plaintiff.", "No counsel for the defendant." ], "corrections": "", "head_matter": "D. F. KINNEY v. P. F. LAUGHENOUR.\nExecution against the Person \u2014 Arrest\u2014Constitution\u2014Seduction.\n1. It is the duty of the Clerk of the Court, upon the application of the plaintiff, to issue, in proper cases, the execution against the person, under \u00a7\u00a7442, 447 and 448 (3) of The Code.\n2. Such execution should command the sheriff to arrest the defendant and commit him to the jail of the county from which it issued, until he shall pay the judgment or be discharged according to law.\n3. Section 291 (2) of The Code, authorizing the arrest of a person in an action for seduction, is not in conflict with the provision of the Constitution prohibiting imprisonment for debt.\n{Moore v. Mullen, 77 N. C., 327; Hoover v. Palmer, 80 N. C., 313; Moore v. Creen, 73 N. C., 394; Long v. McLeod, 88 N. C., 3; Houston v. Walsh, 79 N. C., 35; and Peebles v. Foote, 83 N. C.. 102; cited and approved).\nThis was a motion upon the return of an execution against the person, heard before McRae, Judge, at Spring Term, 1886, of Davidson Superior Court.\nIn the complaint, the plaintiff alleges the cause of action against the defendant for the seduction of his step-daughter, who was at the time thereof a member of his family and his servant. At the time the summons was issued, the plaintiff obtained the warrant of arrest, which was duly executed upon the defendant.\nIn the coui\u2019se of the action he obtained a judgment against the defendant, and thereupon an execution duly issued against his property, which was returned unsatisfied.\nThereafter an execution issued against his person, of which the following is a copy:\nDAVIDSON COUNTY \u2014 SUPERIOR COURT.\nD. F. Kinney, Plaintiff, I Against ' V Execution. P. F. Laughenour, Defendant. J\nThe State oe Noeth Caeolina,\nTo the Sheriff of Yadkin County \u2014 Greeting:\nWhereas, judgment was rendered on the 7th day of September, 1885, in an action between D. F. Kinney, as plaintiff, and P. F. Laughenour, as defendant, in favor of said plaintiff, and against the said defendant, for the sum of two hundred dollars as damages, and two hundred and sixtv-one and 25-100 dollars as cost, as appears by the judgment roll filed in the office of the clerk of said Court; And whereas, the said judgment was docketed in this county on the 7th day of September, 1885; and the sum of two hundred dollars as damages, and $261.25 as cost, are now due thereon, with interest on two hundred dollars from the 7th day of September, 1885; And whereas, an execution against the property of the said P. F. Laughenour has been duly issued to you and returned unsatisfied:\nYou are therefore commanded to arrest the said P. F. Laughenour, the defendant herein, and have his body before said Court, at its next term, to be held for the county of Davidson, at the court-house in Lexington, on the 1st Monday in March, 1886. Herein fail not, and have you then and there this writ.\nIssued the 14th day of January, 1886.\n0. F. LOWE,\nClerk Superior Court Davidson County.\nUnder this execution, the sheriff accepted a bond in the sum of six hundred dollars conditional for the appearance of the defendant before the Court in term, \u201c and not depart the same without leave,\u201d &c.\nAt the Spring Term, 1886, of the Court, further proceedings were had. whereof the following is a copy:\n\u201c The defendant presents himself in answer to the execution issued against his person, dated 14th day of January, 1886, and in exoneration of his bond given the sheriff of Yadkin county. Plaintiff moves that he be taken in custody and committed to the common jail of Davidson county, to answer the exigency of the writ. The Judge being of the opinion that this execution was not in its form warranted by law, denied the motion at cost of plaintiff, and plaintiff excepts.\n\u201c Plaintiff now moves that the Judge order that an execution against the person of defendant issue forthwith. The Judge being of the opinion that it is unnecessary for the plaintiff to apply to the Court in term for the issuance of such process as he may be entitled to under the law, declines to make the order. Plaintiff excepts, and appeals to the Supreme Court.\u201d\nMr. M. H. Pinnix, for the plaintiff.\nNo counsel for the defendant." }, "file_name": "0325-01", "first_page_order": 349, "last_page_order": 353 }