Hayes v. Lancaster, 202 N.C. 515 (1932)

April 6, 1932 · Supreme Court of North Carolina

202 N.C. 515

JULIUS HAYES v. JUNE J. LANCASTER.

(Filed 6 April, 1932.)

Execution If d — Plaintiff suggesting fraud in defendant’s affidavit of insolvency must sufficiently allege and prove fraud.

Where execution against the person of a defendant is made in accordance with the judgment against him, C. S., 673, after execution against his property is returned unsatisfied, and the defendant files a petition for his discharge as an insolvent under C. S., 1637 et seq., and the plaintiff answers the petition for discharge and alleges that the defendant had concealed his property and fraudulently made the affidavit that he was without means: Selct, the plaintiff must allege the fraud with sufficient fullness and certainty to indicate the charge the defendant must answer, and such allegations must be supported by sufficient evidence, and where the plaintiff has failed to do so a judgment dismissing the proceeding will be affirmed.

Appeal by plaintiff from Harwood, Special Judge, at October Term, 1931, of Durham.

Affirmed.

B. 0. Everett, V. S. Bryant and John W. Hester for plaintiff.

Yarborough & Yarborough for defendant.

Adams, J.

Tbe plaintiff recovered a judgment against tbe defendant for $1,400 and bad it docketed in tbe Superior Court. Tbe judgment authorized an execution against tbe person of tbe defendant after tbe return of an -execution against bis property wholly or partly unsatisfied. C. S., 673. Tbe officer found no property upon which to levy tbe execution and served tbe subsequent process against tbe person by arresting tbe defendant and accepting bail for bis appearance in tbe Superior Court on tbe day fixed for tbe return of tbe execution. Tbe defendant, giving due notice, filed a petition for bis discharge as an insolvent under C. S., 1637 et seq., and annexed thereto a statement of bis property. Tbe plaintiff filed an answer to tbe petition for discharge, and alleged that tbe defendant bad' concealed bis property and bad fraudulently made affidavit that he was without means. Tbe plaintiff “suggested and alleged fraud on tbe part of the defendant in bis statement.” Tbe cause was transferred to tbe civil issue docket and tbe trial judge held that tbe controversy was reduced to an issue relative to tbe defendant’s fraudulent concealment of bis property, and that tbe evidence was not sufficient to justify a finding of fraud. Tbe proceeding was dismissed and tbe plaintiff appealed.

When tbe judgment debtor files bis petition for discharge as an insolvent every creditor upon whom notice is served “may suggest fraud upon tbe bearing of tbe petition, and tbe issues made up respecting tbe fraud shall stand for trial as in other cases.” C. S., 1641. Tbe “sug-gestión of fraud” imports tbe setting forth of particular allegations by which to establish the fraudulent transaction. Edwards v. Sorrell, 150 N. C., 112. Fraud must be alleged with sufficient fullness and certainty to indicate the charges the opposing party must answer and the charges, must be supported by competent evidence. Nash v. Hospital Co., 180 N. C., 59; Waddell v. Aycoch, 195 N. C.; 268. Something more than a suspicion of artifice and deception is necessary. ¥e are of opinion that the allegations and the proof do not meet the requirements of the law.

Affirmed.