Palmetto Motor Car Co. v. Brooks

This is an appeal from an order of his Honor, Judge Henry, refusing a motion by the defendant to vacate a previous order of the same Judge, awarding judgment in favor of the plaintiff against the defendant, and directing his arrest and imprisonment under the provisions of the arrest and bail statute. Code Civ. Proc., § 441 et seq.

It appears that the plaintiff brought an action against the defendant on June 5, 1929, to recover $285.00 balance due on a conditional sales agreement executed by the defendant upon the purchase of an automobile. The complaint contains two alleged causes of action; one for the balance of $285, as stated above, and the other upon certain grounds of misrepresentation and fraud, upon which the plaintiff claimed the benefit of the provisions of the arrest and bail statute. Under my view of the case I do not deem it necessary to enter upon the details of these allegations which appear fully set forth in the opinion of Mr. Justice Carter.

No steps were taken by the plaintiff to comply with said statute in the matter of affidavits, order for arrest, undertaking, or otherwise, and no arrest was attempted.

The defendant defaulted in answering the complaint, and on July 10, 1929, the plaintiff applied to his Honor, Judge Henry, at chambers, not only for a judgment upon the unanswered complaint, but for an order authorizing the arrest and incarceration of the defendant upon his failure to pay the judgment rendered for $285, with interest, costs, and attorney's fees. His Honor signed the following order:

"This matter comes before me on motion of James B. Murphy, attorney for plaintiff.

"The record shows that the summons and complaint in this action were served personally on the defendant on June 5, 1929. The record further shows by an affidavit of plaintiff's attorney that no answer, notice, demurrer or other pleadings have been filed in the case, and that the defendant, Ernest J. Brooks, is now in default. The verified complaint further states in the second cause of action, that the defendant obtained of the plaintiff the sum of Two Hundred and Eighty-five and No/100 ($285.00) Dollars, upon misrepresentation of fact, all of which is in violation of Section 422, Code of Laws of South Carolina, Vol. 2, and that he is amenable to the provisions of said section in arrest and bail.

"It is, therefore, adjudged and decreed that the defendant pay to the plaintiff the sum of Two Hundred Eighty-five ($285.00) Dollars together with interest thereon at the rate of seven per cent (7%) from the ........ day of ...... 1928, and such costs and attorneys fees as are provided for in and by said notes mentioned in said complaint. That upon the failure to pay said sum, together with interest, costs and attorneys fee, the defendant be duly arrested by the Sheriff of Fairfield County and incarcerated in the jail of said County until said payment be made or said defendant be discharged according to law."

At some time, not stated in the record, between July 10, 1929, the date of the above order, and August 7, 1929, the defendant gave notice of a motion to vacate said order upon the following grounds:

"1. That the complaint, upon which said order is based shows upon its face that the sum of two hundred eighty-five dollars alleged to have been paid by the plaintiff to Commercial Credit Company, was paid by it in accordance with an agreement between the plaintiff and said Commercial Credit Company.

"2. That the plaintiff has not made or given the undertaking required by law.

"3. That no provision is made in said order for bail for the defendant and no specified sum is named or fixed therein.

"4. That the complaint, upon which said order is made, does not state facts upon which an order of arrest may be made, in that the facts stated in the complaint do not allege that the defendant was guilty of fraud in contracting the debt or incurring the obligation for which the action is brought.

"5. That the facts stated in the complaint do not constitute a fraud.

"6. That the complaint upon which the order is based does not state facts sufficient to justify the granting of the order of arrest.

"7. That said order of arrest and for judgment were prematurely made."

On August 7th the motion was heard by his Honor, Judge Henry, and in a formal order refused. From it the defendants has appealed.

I have not considered the matter discussed in the opinion of Mr. Justice Carter, whether the second cause of action states a valid ground of misrepresentation and fraud such as would justify proceedings under the arrest and bail statute, for the reason that, in my opinion, Judge Henry was without jurisdiction to pass so much of the order as directed the arrest and imprisonment of the defendant, in the absence of the affidavit required by Section 444 and of the undertaking required by Section 445.

It is questionable whether the defendant, having made default in answering the complaint, is entitled to present the motion to vacate the order of arrest; but, as the objection to the jurisdiction discussed could be urged upon habeas corpus, it seems unnecessary to impose recourse to that proceeding upon the defendant.

I see no objection to allowing the money judgment to stand, and think that the order appealed from should be reversed only so far as it directs the arrest and imprisonment of the defendant.

MR. JUSTICE BLEASE concurs.