The plaintiffs recovered a judgment against the defendants, S. M. Lawrence and A. B. Daughtry, partners in trade, before (66) a justice of the peace, on 29 March, 1879, and had it docketed in the Superior Court. An execution was issued thereon on 8 April, 1879, and, upon affidavit of plaintiffs, and order for examination was made, returnable before the Judge at Chambers. The defendants appeared specially and moved to dismiss the proceeding and discharge said order, for that only three days notice had been given. In reply, the plaintiffs insisted that the notice was sufficient in law, but offered to continue the case to a day which would suit the convenience of defendants. It was further objected that the plaintiff's affidavit did not show that defendants had no property which could be sold under proceedings in the nature of execution to enforce its sale; and, without admitting the force of the objection, the plaintiffs asked and obtained leave to amend the affidavit so as to meet the objection. The amendment was allowed, and the defendants excepted. It was also contended by defendants that this proceeding could not be maintained against joint debtors, unless the affidavit showed that the execution had been returned unsatisfied in whole or in part.
The motion to dismiss was overruled, and the defendants filed their answer. It was then admitted that no demand or request was made on *Page 62 defendants to apply any of their property to plaintiffs' debt, other than the issuing the summons, obtaining judgment, and issuing execution. The Court also refused to dismiss upon this ground, and ordered the examination to be had before N. R. Odom, Clerk of the Superior Court, at his office in Jackson, upon ten days' notice to each party. From which ruling the defendants appealed. The plaintiffs having judgment duly docketed against defendants as partners in business, issued their execution, and while the same was in the hands of the Sheriff, applied to the Judge of the district for an order to examine the defendants on proceedings supplementary to execution.
His Honor ordered the examination before himself at Chambers, and issued a notice to the defendants on the 8th of April, returnable before him on the 11th, and at the return day defendants appeared specially on a notice to discharge the order of examination and to dismiss the proceedings, on the grounds which, together with the rulings of the Judge thereon, will be separately mentioned and considered.
1. The defendants moved the dismission, for that they had had but three days notice, and the same in law was insufficient, insisting that they were entitled to eight days notice under C. C. P., sec. 346. This section of the Code is a part of the chapter regulating the subject of motions generally, and the eight days prescribed therein is to be ordinarily observed, but there is a distinct provision in regard to supplementary proceedings in section 264, wherein it is provided that the debtor may be required to appear and answer concerning his property before the Court or Judge at a time and place specified in the order, and from this phraseology it is to be taken that the eight days notice insisted upon under section 346 does not apply, for it is manifest from the language aforesaid that it was competent to the Judge to name the place and fix upon the time according to his discretion under all the circumstances. He might in some cases make it longer; in others, he might make it shorter, according to the emergency, upon the facts disclosed in the affidavit, having a due regard to the convenience of the parties and the necessity for a speedy examination. His Honor, however, did not require the defendants to submit to an examination on the return day of the notice, but made a new order of examination, and (68) ordered the examination to be had before N. R. Odom, Clerk of the Superior Court, at his office, on ten days notice to each party of the time and place, and thus a reasonable opportunity was afforded *Page 63 the defendants to make ready. This action of the Judge derives support from the ruling of this Court in the case of Guion v. Melvin, 69 N.C. 242, wherein it was held that, on a summons requiring a party to appear on a day certain, which was short of twenty days after the service, the Judge of Probate should not have dismissed the case, but continued it so as to give the party full time for appearance. We think, therefore, the defendants have no just cause of complaint of his Honor's action on this point.
2. It was moved to dismiss on the ground that the affidavit of the plaintiffs was insufficient to warrant the order of examination, in that whilst it negatived property in the defendants liable to execution, it did not negative the existence of equitable interests, which could be reached by proceedings to enforce a sale in the nature of an execution. It was certainly necessary that the affidavit should be thus definite, as decided by this Court in the cases of McKeithan v. Walker, 66 N.C. 95, andHutchison v. Symons, 67 N.C. 156; and so when the motion was made, the affidavit being defective, the order of examination and proceedings should have been set aside and dismissed, if the plaintiffs stood upon the sufficiency thereof; but on the mention of the defect, they at once, in order to obviate the objection, asked leave to amend their affidavit.
His Honor allowed the amendment, and it was forthwith made so as to negative both the existence of property which could be reached by execution, and of equitable interests which could be reached by proceedings for the sale of the same, in the nature of an execution. And the question is, was his Honor right in allowing the amendment of the affidavit? It is urged by defendants that as their motion was grounded on the insufficiency of the plaintiff's affidavit, and without any affidavit on their part, it was inadmissible to allow any new (69) affidavit or amendment of the one already filed on the part of the plaintiffs; and for this position they rely on the authority of this Court in the cases of Brown v. Hawkins, 65 N.C. 645, and Clark v.Clark, 64 N.C. 150.
The cases cited were motions to vacate attachments, and it was therein decided that if the motion was based on the insufficiency of the plaintiff's affidavit alone, it was incompetent to resist the same by any affidavit in addition to the one on which the attachment was issued as per C. C. P., sec. 213; and the same ruling was made by this Court as to motions to vacate an injunction under C. C. P., sec. 196, and as to motions to vacate an order of arrest under C. C. P., sec. 175. In all these instances the Court was bound by the express provisions of the Code, and there was no power or discretion to rule otherwise. But in regard to supplementary proceedings there is no such provision in the statute, and so the Judge was at liberty when the defect was exhibited *Page 64 to allow the amendment by inserting other provisions therein, under the liberal powers contained in C. C. P., sec. 132.
The Judge, on the motion to dismiss, assuredly had the power to set aside the order of examination and dismiss the proceedings eo instante, to allow the amendment and to make a new order of examination, and this his Honor in effect did; he allowed the amendment at once and ordered an examination to be had, not before him, as at first, but before Mr. Odom in his office in Jackson, on ten days notice of the time and place. It seems to us, therefore, in the absence of any statutory prohibitions, as in the provisional remedies before mentioned, the allowance of amendment was in furtherance of justice, and within the competent authority of his Honor.
3. It was objected that supplementary proceedings did not lie against joint debtors, unless it appeared that the execution had been returned unsatisfied. Under the first part of section 264 of the Code, the (70) remedy is given as to the judgment debtor, or any one of several debtors in the same judgment, after execution returned unsatisfied, and this is construed to extend the case of a single debtor, or to joint debtors, and is not controverted by the counsel for defendants. But in the second part of said section the remedy is given, when the execution is still in the hands of the Sheriff, and is described as extending to anyjudgment debtor; and from the difference of the Phraseology in the two cases, it is argued that in the last case the defendants, being joint debtors, are not liable to be examined in such a proceeding. In our opinion, the languages used in the case of an execution unreturned, "any judgment debtor," is as broad as the words employed in the case of an execution returned, "the judgment debtor, or any one of several debtors in the same judgment," and was intended to embrace, and does embrace, the case of the defendants as joint debtors. The history of the section in the New York Code, from which section 264 in our Code is copied, confirms this view; at first the Code provided the remedy as extending to the judgment debtor, or any one of several debtors in the same judgment, on the return of an execution unsatisfied, and, afterwards, by amendments, it was authorized in the case of an execution issued and in the hands of theSheriff. 2 Whitaker's Prac., 665. And the construction and practice in that State were, that joint debtors were embraced alike under each part of the section, and in all cases, except where a judgment was taken against joint debtors on service of a summons on but one as authorized by the Code, and this was provided for by another amendment in 1863, restricting the examination of the debtor, not served, to the joint property, and after execution returned unsatisfied. This last provision is contained in our Code, and is the second clause in section 266, and the remedy therein extended to joint *Page 65 debtors in a judgment obtained on services of summons on but one, indicates and establishes that joint debtors included in a (71) judgment founded on a service on all, was already provided for in section 264.
Our attention has been called to the decision of this Court in the case of Howey v. Miller, 67 N.C. 459, and it is claimed that the point there decided is adverse to the conclusion to which we have arrived. In that case the decision was that a debtor to one of several judgment debtors might not voluntarily pay his debt to the Sheriff having an execution in his hands, but could only do so under section 265 of the Code, when the judgment was against a single debtor. It decided nothing as to the payment of a debt due to partners, and certainly nothing as to a compulsory payment by order of the Court on a judgment against partners for a joint debt, on supplementary proceedings as provided for in C. C. P., sec. 266. We therefore conclude that the remedy does extend to joint debtors, and his Honor ruled correctly as to this ground.
4. The defendants failing in their motion to dismiss on these several grounds, urged that no demand had been made on them, and that they had never refused to apply their property to the satisfaction of plaintiff's debt, and therefore the plaintiffs were not entitled to an order for their examination. In our opinion, suit brought and all the proceedings up to judgment, and execution issued and placed in the hands of the Sheriff, was in law a demand; and during all the while it was the duty of the defendants to comply with the demand thus made, by devoting their property to the payment of the debt, and their non-compliance was a refusal within the intent and meaning of the statute, and authorized the remedy. It certainly cannot be that the plaintiffs, before they can resort to the remedy, have to make a personal demand and have a formal refusal; if so, then in case a debtor should be fraudulently inclined, such a course would be notice to put away and secrete the property and render the proceedings fruitless.
It is enough that the defendants, in disregard of their obligation, refused in the sense before explained, to devote (72) their property to the payment of plaintiff's debt, which had been demanded by suit brought and the proceedings to judgment.
We concur with his Honor in his ruling on this and all the grounds of the motion to dismiss. The examination may be had as ordered.
Affirmed.
Cited: Hinsdale v. Sinclair, 83 N.C. 343; Strayhorn v. Blalock,92 N.C. 294; Hackney v. Arrington, 99 N.C. 112; Turner v. Holden,109 N.C. 185, 187. *Page 66