Elliott v. Burton

198 S.E.2d 489 (1973)

19 N.C. App. 291

B. W. ELLIOTT v. Clyde Paul BURTON, Individually and trading as Burton Enterprises, et al.

No. 7321SC605.

Court of Appeals of North Carolina.

August 29, 1973.

*490 White & Crumpler, by James G. White, Michael J. Lewis, and G. Edgar Parker, Winston-Salem, for plaintiff appellee.

*491 Carlton, Rhodes & Thurston, by Richard F. Thurston, Salisbury, and Linda A. Thurston for defendant appellants.

PARKER, Judge.

"[A] judgment merges the cause of action upon which it was rendered, and becomes itself the obligation." 2 McIntosh, N.C. Practice and Procedure 2d, § 1735. Therefore, plaintiff's original cause of action, in which he sought recovery of damages for injuries to his property allegedly caused by defendants' negligence, became merged into the consent judgment dated 6 January 1973. Where a judgment directs a party to perform a specific act and the party fails to comply within the time specified, various methods by which enforcement of the judgment may be effected are set forth in G.S. § 1A-1, Rule 70. This Rule provides in part as follows:

"If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the judge may direct the act to be done at the cost of the disobedient party by some other person appointed by the judge and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The judge may also in proper cases adjudge the party in contempt."

In the present case none of the procedures provided for in Rule 70 was followed. Plaintiff did ask in his motion "that the defendants be held in contempt of Court," but plaintiff failed to show and the court made no finding that defendants' default in complying with the consent judgment was the result of willful disobedience. Such a finding is required before punishment may be imposed in civil contempt proceedings, Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391, and even then the trial judge in this State has no authority to award indemnifying fines or other compensation to a private party in a contempt proceeding. Records v. Tape Corp. and Broadcasting System v. Tape Corp., 18 N.C.App. 183, 196 S.E.2d 598.

We hold that it was error for the trial court to enter the judgment awarding plaintiff monetary damages under the procedures disclosed by the present record. Resort should be had to other procedures, which may include one or more of those provided for in Rule 70, to obtain in this action defendants' compliance with the obligation imposed upon them by the consent judgment of 6 January 1973.

The judgment appealed from is vacated and this cause is remanded to the Superior Court of Forsyth County for further proceedings not inconsistent herewith.

Vacated and remanded.

BROCK, C. J., and MORRIS, J., concur.