Parker v. . Bledsoe , 87 N.C. 221 ( 1882 )

The answer clearly admits to be due of principal money upon the original merged in the note (223) sued for, at least the sum of $499.20, the residue after applying the alleged payment, and this judgment seems to be warranted by the express provision of the Code. Sec. 215, par. 5. The reference must be construed as confined to what is still claimed by the plaintiff and contested by the defendants, the order therefor and the judgment rendered being the action of the court at the same term.

If there be any cause of complaint, the defendants' remedy should have been sought in an application to the judge for such modification of the terms of the judgment as would remove the grievance, or for an order suspending proceedings under it to enforce payment of the sum adjudged to be due. It is entirely irregular under our present system to seek relief in a personal injunction against the plaintiff and restrain him from the advantages of a judgment unreformed, where it can and ought to be obtained, if proper in itself, by an order in the cause.

As the superior courts now possess and exercise the hitherto divided jurisdiction conferred upon courts of law and courts of equity, the proposition of the defendants is that the same court shall restrain a suitor from pursuing the very remedies it has given him, and in the language of Judge NASH, an application to a court of equity to restrain its own proceedings is a novelty; and he adds, the court is called on "to pronounce that to be iniquitous and wrong, which it has already declared to be right and proper," yet "the court can, and, upon a proper case made, supported by affidavit, will withdraw the process itself or stay an execution by granting a supersedeas." Greenlee v. McDowell, 39 N.C. 481.

So this court said in Chambers v. Penland, 78 N.C. 53, "While the action is pending, relief can be obtained by a defendant aggrieved by a judgment by his applying to the court wherein it was rendered for a modification, and meanwhile for a supersedeas or other order arresting proceedings, until the application can be heard." (224)

But if the application had been made to set aside or reform the judgment under section 133 of the Code, or for irregularity, we see no ground on which the motion could be allowed. More than a year had elapsed from the rendition of the judgment, Mabry v. Erwin, 78 N.C. 45; Askew v.Capehart, 79 N.C. 17,) and no irregularity is imputed in entering it up.

But we are confined as a reviewing court to pass upon the ruling which annuls the temporary restraining order and refuses the injunction, and there is no error therein. The judgment is affirmed, and this will be certified.

No error. Affirmed.

Cited; Grant v. Moore, 88 N.C. 78; Roulhac v. Miller, 89 N.C. 196;Coward v. Chastain, 99 N.C. 445; Curran v. Kerchner,, 117 N.C. 265;Stewart v. Bryan, 121 N.C. 48; Banks v. Lane, 171 N.C. 507, 511;Fertilizer Co. v. Trading Co., 203 N.C. 262; Finance Co. v. Trust Co.,213 N.C. 372; McDay v. Investment Co., 228 N.C. 291.