Wood & Hathaway v. Harrell, 74 N.C. 338 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 338

WOOD & HATHAWAY v. T. J. HARRELL.

An affidavit in an action up on a contract for the recovery of money, alleging “that the said T. J. is about to remove from the State ef North Carolina, to become a resident of the State of Virginia,” is not sufficient to warrant an order of arrest of the defendant.

Ihe affidavit must show the grounds upon which the belief of the plaintiff is based, in order that the court may judge the reasonableness thereof.

(Hughes v. Person, 63 N. C. Rep. 648; Clark v. Clark, 64 N. C. Rep. 150; Wilson vr Barnhill, 64 N. C. Rep. 121, cited and approved.)

This was a Civil ActioN, tried before his Honor, Eure, J., at Spring Term, 1875, of the Superior Court of Chowak county.

Tbe action was originally commenced in a Court of Justice of tbe Peace, to recover tbe sum of $85.00, alleged to be clue tbe plaintiff by contract. At tbe time of issuing the summons, the plaintiff filed the following affidavit:

“ J. R. E. Hathaway makes oath :

1. That be is a member of tbe firm of Wood & Hathaway, composed, as above stated, and doing business in Edenton, county aforesaid.

2. That Thos. J. Harrell is indebted to the said firm by contract, with interest to this date, in the sum of $85.54.

3. That the said Thomas J. Harrell is about to remove from the State of North Carolina to become a resident of the State of Yirginia.”

Upon the filing of this affidavit, a capias was issued for the arrest of the defendant.

On the-day of-, 1874, judgment was rendered in the Justice’s Court in favor of the plaintiff, from which judgment the defendant appealed to the Superior Court.

When the ease was called in the Superior Court, the defendant moved the court to vacate the order of arrest, because of the insufficiency of the affidavit.

After argument, the motion was overruled, and it was submitted to the jury to decide whether the facts, stated in the affidavit of the plaintiff, were true. The jury found by their verdict that the defendant was about to remove from the State, whereupon the court rendered judgment in favor of the plaintiff. Erom which judgment the defendant appealed.

No counsel in this court for the appellant.

Gilliam efe Pruden, contra.

ByNüm, J.

The affidavit filed did not warrant the order of arrest. The distinction was taken in Hughes v. Person, 62 N. C. Rep., 548, between things done and things which the party believes are about t@ be done, and this distinction wa& reaffirmed in Clark v. Clark, 64 N. C. Rep., 150. It was therefore necessary for the plaintiffs, in their affidavit, to have set forth the grounds of their belief that the defendant was “ about to remove from the State,” in order that tire court might judge the reasonableness thereof. Wilson v. Barnhill, 64 N. C. Rep., 121. The court refused to vacate the order of arrest; why, then, afterwards submit the same matter to the revision of a jury? The question of the sufficiency of the affidavit was one of law addressed to the court alone.

There is error.

Per Curiam. Judgment reversed and order of arrest vacated.