Chambers v. . Penland , 78 N.C. 53 ( 1878 )

We are of opinion that the injunction was properly refused.

The summary mode of proceeding adopted to enforce payment of the debt is authorized by law, under an express adjudication in this Court. Rev. Code, ch. 31, sec. 129; Mauney v. Pemberton, 75 N.C. 219.

The general guardian is the proper person on whom process against infant defendants should be served, and it is his duty to protect their interest in the suit. Bat. Rev., C. C. P., sec. 59.

If there were such irregularities in the preliminary proceedings as to impair the title to the land derived under the plaintiff's sale, they are corrected and cured by the subsequent action in the probate court. But were it otherwise, the obvious and appropriate remedy was open (56) to the purchaser by process issuing from the probate court to call upon those who were not properly made parties to come in and confirm or repudiate the sale, and it was his duty to resort to this course before asking to have the contract annulled and himself freed from its obligation. Unless this remedy was unavailable, he was not entitled to relief by injunction. In this connection we desire to advert to a practice which has become quite common, and is entirely at variance with the provisions of The Code. We refer to the practice of seeking relief from a judgment by an injunction, addressed to the plaintiff, issued in a new independent action, and sometimes from a different jurisdiction.

As a provisional remedy, injunction are granted in furtherance of a claim or right which the plaintiff asserts in an action. C. C. P., secs. 188, 196.

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 proceeding, until the application can be heard. He is not allowed to seek redress from the action of one court through the conflicting and repugnant action of another court, or in a different and distinct proceeding in the same curt.

Nor is it proper for one court, or the same court in another action, by a personal order directed to the plaintiff, to deprive him of those advantages and rights to which it has been adjudged he is entitled, while such judgment remains in force.

In our case the probate court was the appropriate and only place in which the defendant could obtain redress, and its power was ample for the purpose. the judge to whom application for the injunction was made was without jurisdiction in the premises, unless the matter came before him an appeal. the defendants' motion was properly (57) refused. There is no error, and the judgment is

PER CURIAM. Affirmed.

Cited: Lord v. Beard, 79 N.C. 10; Capel v. Peebles, 80 N.C. 94;Jones v. Cameron, 81 N.C. 157; Parker v. Bledsoe, 87 N.C. 223; Grant v.Moore, 88 N.C. 78; Long v. Jarrett, 94 N.C. 446; Coward v. Chastain,99 N.C. 45; Smith v. Huffman, 132 N.C. 603.