THE FIRST & CITIZENS NATIONAL BANK OF ELIZABETH CITY v. R. L. HINTON.
(Filed 2 March, 1938.)
Execution § 21 — Affidavit held sufficient to support order for examination of judgment debtor concerning choses in action subject to execution.
An affidavit stating that affiant bad obtained judgment against defendant, which judgment was duly docketed and execution issued thereon, and that the judgment and execution remained unsatisfied, that defendant had no known interest in realty sufficient to satisfy execution, and that defend*163ant listed for taxation certain notes and evidences of debt due bim, and bad other ehoses in action of value, not exempt from execution, wbicb be unjustly refused to apply to tbe satisfaction of tbe judgment, is held in substantial compliance with O. S., 712, and sufficient to support an order for tbe examination of defendant and others concerning such notes and cboses in'action.
Appeal by defendant from Frizzelle, J., at October Term, 1937, of PasquotanK. Affirmed.
Tbis was a proceeding supplemental to execution, instituted by a judgment creditor, based upon affidavit, to require tbe examination of tbe judgment debtor and other persons concerning certain debts and cboses in action alleged to be subject to execution.
Upon appeal from an order of tbe clerk tbe judge of tbe Superior Court ruled tbat tbe affidavit was sufficient to entitle tbe plaintiff to examine tbe parties, and remanded tbe cause of tbe clerk to conduct sucb examination. Prom tbe order of tbe judge tbe defendant appealed to tbe Supreme Court.
J. Kenyon Wilson for plaintiff, appellee.
Q. G. Davis, Jr., and George J. Spence for defendant, appellant.
Devin, J.
Tbe only question presented by tbis appeal is wbetber tbe affidavit was sufficient to warrant tbe order for tbe examination of tbe judgment debtor and tbe persons alleged to be indebted to bim.
It was set forth in tbe affidavit tbat tbe plaintiff bad recovered a judgment against tbe defendant and bad same duly docketed in tbe Superior Court of Pasquotank County; tbat execution thereon bad been issued; tbat tbe judgment and execution remained unpaid and unsatisfied, and tbat there was no known property or equitable interest in real property sufficient to satisfy tbe execution; tbat tbe defendant listed for taxation notes due by certain persons and other evidences of debt, of wbicb tbe defendant was still the owner, and tbat tbe defendant bad other cboses in action and things of value, not exempt from execution, wbicb be unjustly refused to apply toward tbe satisfaction of said judgment.
Tbe affidavit was in substantial compliance with tbe provisions of sec. 712 of tbe Consolidated Statutes, and constituted sufficient basis for tbe order of examination as entered by tbe judge of tbe Superior Court. Bank v. Burns, 109 N. C., 105, 13 S. E., 871; Boseman v. McGill, 184 N. C., 215, 114 S. E., 10; McIntosh Prac. and Proc., sec. 748.
Tbe order of tbe court below is in all respects
Affirmed.