Baxter v. . Baxter

77 N.C. 118

• Court: Supreme Court of North Carolina
• Decided: June 5, 1877
• Status: Published

Opinion

Eairgloth, J.

This action was brought to restrain the defendant, T. E. Baxter, as Sheriff, from selling under an execution certain personal property, which had been assigned to the plaintiff, J. W. Baxter, as his personal property exemption, which is still in his possession.

The argument before us referred to the sufficiency of certain levies made by the Sheriff, and to the effect of an order made in the Bankrupt Court. We do not enter into these questions, as we are of opinion that the plaintiff has no cause of action and therefore cannot maintain it, on the ground that his possession of said property has not been disturbed by the defendants.

Should they seize it, as it is alleged they threatened to do, the plaintiffs may continue their possession -under C. C. P. § 177, (sub § 4), and try the title regularly and not by injunction.

The practice of trying title to 'personal property by injunction has not been adopted in this State.

There is error.

Per Curiam. Judgment reversed and action dismissed.