If the action is one in which the defendant might have been arrested, an execution against the person of the judgment debtor may be issued to any county within the State, after the return of an execution against his property wholly or partly unsatisfied. But no execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, as provided in the Article Arrest and Bail, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by law, whether such statement of facts is necessary to the cause of action or not. Provided, that where the facts are found by a jury, the verdict shall contain a finding of facts establishing the right to execution against the person; and where jury trial is waived and the court finds the facts, the court shall find facts establishing the right to execution against the person. Such findings of fact shall include a finding that the defendant either (i) is about to flee the jurisdiction to avoid paying his creditors, (ii) has concealed or diverted assets in fraud of his creditors, or (iii) will do so unless immediately detained. If defendant appears at the hearing on the debt and the judge has reason to believe that the defendant is indigent, he shall inform the defendant that if he is an indigent person he is entitled to services of counsel under G.S. 7A-451, that he may petition for preliminary release on the basis of his indigency, that if he does so he will have an opportunity within 72 hours to suggest to a judge his indigency for purposes of appointment of counsel and provisional release, and that the judge will thereupon immediately appoint counsel for him if it is adjudged that he is unable to pay a lawyer. If defendant appears at the hearing on the debt and the judge provisionally concludes he is indigent, counsel should be appointed immediately pursuant to rules adopted by the Office of Indigent Defense Services. (C.C.P., s. 260; Code, s. 447; 1891, c. 541, s. 2; Rev., s. 625; C.S., s. 673; 1947, c. 781; 1977, c. 649, s. 1; 2000-144, s. 14.)
Notes of Decisions
Cited in
11
cases, 1949–2017 · leading case:
Grimes v. Miller, 429 F. Supp. 1350 (M.D.N.C. 1977).
Grimes v. Miller, 429 F. Supp. 1350 (M.D.N.C. 1977).
· cites it 23× “MEMORANDUM OF DECISION CRAVEN, Circuit Judge: This is a suit brought before a duly constituted three-judge court in which the plaintiff seeks to prosecute both a personal and class action for the purpose of declaring N.C.Gen.Stat. §§ 1-311 and 1-410 to be unconstitutional, to…”
Leonard v. Williams, 397 S.E.2d 321 (N.C. Ct. App. 1990).
· cites it 13× “In this State a person may be arrested and held to bail “in an action for the recovery of damages on a cause of action not arising out of a contract where the action is for wilful, wanton, or malicious injury to person or character or for wilfully, wantonly, or maliciously…”
Windham Distrib. Co. v. Davis, 323 S.E.2d 506 (N.C. Ct. App. 1984).
· cites it 8× “1A-1, Rule 60(b)(4) motion to set aside the judgment as void and (2) his motion to dismiss the order of arrest on the grounds that this order for execution against his person was in violation of G.S. 1-311. We hold that the trial court properly denied the Rule 60(b)(4) motion,…”
MacClements v. LaFone, 408 S.E.2d 878 (N.C. Ct. App. 1991).
· cites it 4× “The basis for Allred was N.C. Gen. Stat. § 1-311 (1953). Leonard v.”
Nunn v. Smith, 154 S.E.2d 497 (N.C. 1967).
· cites it 2× “G.S. 1-311. Houston v. Walsh, 79 N.C. 35 .”
Shaw v. Williamson, 331 S.E.2d 203 (N.C. Ct. App. 1985).
· cites it 2× “The basis for the Court’s holding, though, was that if a judgment for punitive damages was entered against defendant and was not satisfied by regular execution he would be subject to execution against the person pursuant to the provisions of G.S. 1-311. But the defendant in this…”
Safford v. Barnes, 191 F. Supp. 3d 504 (M.D.N.C. 2016).
“§§ 1-311 and 1-410 (sixth cause of action).”
Koury v. John Meyer of Norwich, 261 S.E.2d 217 (N.C. Ct. App. 1980).
“1-410, holding that the plaintiff lacked standing to challenge the North Carolina pre-judgment arrest statutes and confining its decision to a consideration of G.S. 1-311 which provides for post-judgment civil arrest, the reasoning of *401 the opinion of the court, written by…”
Williams v. Johnson, 53 S.E.2d 277 (N.C. 1949).
“When a sheriff is seeking to collect a judgment under execution issued to him, be must, before levying upon tbe real property of tbe debtor, proceed to have tbe debtor’s homestead allotted.”
Bandy v. a Perfect Fit for You, Inc., 2017 NCBC 63 (N.C. Bus. Ct. 2017).
· cites it 12× “1977) (“N.C. Gen. Stat. § 1-311 requires that facts be found by a jury or by a judge ‘establishing the right to execution against the person.”
Rouse v. Wheeler, 194 S.E.2d 555 (N.C. Ct. App. 1973).
“1-410(1) and (4) is available to the Plaintiff in the event the Defendant fails to satisfy the judgment herein rendered after execution against the property of the Defendant. 3. That the costs of this action be taxed against the Defendant.”
— N.C. Gen. Stat. § 1-311(i) — 1 case
Windham Distrib. Co. v. Davis, 323 S.E.2d 506 (N.C. Ct. App. 1984).
“1A-1, Rule 60(b)(4) motion to set aside the judgment as void and (2) his motion to dismiss the order of arrest on the grounds that this order for execution against his person was in violation of G.S. 1-311. We hold that the trial court properly denied the Rule 60(b)(4) motion,…”
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