Howie v. . Spittle

BeowN, J. The petitioner is the defendant in a civil action brought against him by Euth Howie for an injury to her person, a tort, according to the complaint. Upon issue joined, she obtained a verdict and judgment for $250. The petitioner appealed to the Supreme Court, which appeal has not yet been heard. He gave no bond to stay execution, so an execution was issued against his property, which was returned unsatisfied. An execution was issued against his person, under which he was taken into custody and confined in the jail of Union County. Before he was arrested he filed an inventory of his property and a list of his creditors as provided by section 1930, Eevisal 1905, and attached his affidavit thereto and-asked to be exempt from arrest. We will not review the correctness of the judgment rendered, nor consider the exceptions taken on the trial. They will be passed upon and the assignments of error considered when the appeal is heard. The only question we can now consider is as to the jurisdiction of the court to render the judgment and issue the final process under which the petitioner has been arrested. The cause of action, as set out, is an injury'to the person of the plaintiff in the execution, which is a tort, and under *182 Revisal, sees. 625 and 727, when an execution against property is returned unsatisfied an execution against tbe person may issue upon sucb judgment. When the appeal was taken the law provides but one method of staying execution, and that is by giving a bond securing the judgment. This the petitioner has failed to do. Revisal, sec. 598, and cases cited. The Superior Court had complete jurisdiction to render the judgment, and therefore the'petitioner is imprisoned under the final process of a court of competent jurisdiction. Under such conditions the writ of habeas corpus may not successfully be sued out. The statute forbids it. Revisal, sec. 1822, subsec. 2; Ledford v. Emerson, 143 N. C., 536. The petitioner contends that he is entitled to his discharge, under the insolvent debtor’s law. There are two methods provided in the Revisal for the discharge of insolvent debtors. One relates to those under arrest. Section 1920 et seq. The other relates to defendants in civil actions not under arrest. Section 1930 et seq. The petitioner was not under arrest when he filed his petition, and there is nothing in the record to show that he has complied with the provisions of sections 1930 to 1933. To avail himself of that act he must show a valid order of discharge from imprisonment under sections 1932 and 1933. It is not claimed that he has complied with sections 1920 to 1929. We agree with the judge below, that the petitioner is not entitled to give bail pending his appeal to this Court in the civil action, but he may give bond to stay execution. There is no provision of law authorizing bail in lieu of such bond, although there is a provision for his giving bail before the Clerk of the Superior Court of Union County during the pendency of and until the final determination of the proceedings under the insolvent debtor’s act. Revisal, sec. 1936. The judgment is Affirmed.