Grant v. . Moore

88 N.C. 77

• Court: Supreme Court of North Carolina
• Decided: February 5, 1883
• Status: Published

Opinion

Smith, C. J.,

after stating the case. The action of the court in refusing to entertain the application for an interference with the proceedings in another pending suit between the same parties, with reversed relations, when full relief can be there had, is fully sustained by the cases cited in the argument for the appellee, and the settled practice, we had hoped, was well understood. The references are Council v. Rivers, 65 N. C., 54; Faison v. McIlwaine, 75 N. C., 312; Chambers v. Penland, 78 N. C., 53; Lord v. Beard, 79 N. C., 55; Murrill v. Murrill, 84 N. C., 182; Parker v. Bledsoe, 87 N. C., 221. We recall what was said in Chambers v. Penland, and reaffirmed in slightly variant language in Parker v. Bledsoe.

“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. 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 court.”

Under our former system redress against an inequitable judgment or an u.nconscientious use of it, was afforded by a personal mandate addressed to the party, restraining and controlling his conduct, but not by a direct interposition in the cause. Now the correction is sought in a modification of the judgment itself, and in instructions putjppon the issuing of process to enforce it, the injunction or restraining order operating only as a suspension of action until the application can be heard. The judgment is affirmed and this will be certified.

No error. Affirmed.