Wingo v. . Hooper

Davis J., (after stating the facts;. Two questions are presented for our consideration: 1st. The refusal to vacate the order of arrest; and, 2nd. The refusal to submit the issue of fraud, raised by the allegation in the plaintiffs’ affidavits and denied in the defendant's affidavits, to the jury. Both questions have been judicially settled, adversely to the appellant. In Roulhac v. Brown, 87 N. C., 1, it was held, in a case similar to this, that the Judge properly declined to entertain a motion to vacate an order of arrest, when the same motion had been made at the previous term and refused. Ashe, Judge, said: “ The decision upon the first motion was made by a Court of competent jurisdiction, upon a substantial right, was reviewable by appeal, but no appeal was taken, and must therefore govern this case as res adjudicataand it governs this also. Upon the first question we need only refer to the foregoing case and the authorities there cited. Upon the second question the case of Pasour v. Lineberger, 90 N. C., 159, and the authorities there cited, are equally conclusive. The defendant submitted his motion to the Court upon affidavits, and it was competent for the Court to pass upon and find the facts and allow or refuse the motion, as the facts required. “ It is not contemplated that questions of fact arising in such matters shall be tried by a jury.” Counsel for the defendant relied upon Claflin & Co. v. Underwood, 75 N. C., 485. In that case the complaint contained specific allegations of fraud, which were denied in the defendant’s 1 answer, and when the judgment was entered, it was in these words: “ By consent, judgment for the debt only; issues of fraud not *485 tried;” and upon this judgment it was held that the defend- and was entitled to his discharge from arrest. That is unlike the case before us. Under the old practice, defendants (with certain exceptions) were required to give bail for their appearance to answer, &c., and if unable to give bail, they could only procure their discharge by filing an accurate schedule of their property, and, in the language of the times, “ swearing out.” Under The Code, we think parties arrested and in custody, in pursuance of the provisions contained in §290 et seq., if the order of arrest is not vacated “on motion,” must seek their discharge in the mode prescribed in Chap. 27, §§2942 etseq., of The Code. That chapter provides, in detail, the method by which every insolvent debtor may “ be exempt from arrest or imprisonment, on account of any judgment previously rendered, or of any debts previously contracted;” and the suggestion that if the motion to vacate the order of arrest, when once passed upon and disallowed, is final, the defendant may be improperly and unjustly deprived of his liberty, is fully met by the provisions of that chapter, and “ every person taken or charged on any order of arrest for default of bail, or on surrender of bail, in any action, and every person taken or charged in execution of arrest for any debt or damage rendered in any action whatever,” may procure his discharge by a compliance with the requirements of that chapter. Affirmed.