Davis v. Federal Land Bank

Barnhill, J. The record is in a most unsatisfactory condition. There are two complaints, neither one of which appears in the record as an exhibit. It is impossible for us to determine whether the application for the restraining order was made in the action first instituted or in the second action. As to this counsel themselves cannot agree. The plaintiffs assert in their brief that application was made in the action instituted in April. The defendant asserts that it was made in the action instituted in May. The reference in the order of Nettles, J., would seem to make it appear that it was issued in the second action, in which the plaintiffs allege a contract to purchase after the foreclosure. While this has required the statement of facts which would not otherwise be so necessary, perhaps it is not very material. In either event the same question of law is presented. *149 It seems apparent that the plaintiffs misapprehend the extent of the opinion of Land Bank v. Davis, supra. It was not there adjudged that the mortgage under which foreclosure was had did or did not convey the mineral interests. Neither was it adjudged that the plaintiffs are or are not the owners of the mineral interests in said land. It merely directed that the judgment be so amended as to show that the questions as to what the mortgage conveyed and as to the ownership of the mineral interests were reserved for future determination. It was further decreed that upon the amendment being made the plaintiff therein was entitled to a writ of assistance. The record discloses that the judgment in that action was amended in accord with the opinion of this Court and that on 15 August, 1939, Nettles, J., issued his order in the nature of a writ of assistance directing the sheriff of Stokes County to remove the plaintiffs herein from said premises and to place the Land Bank in possession thereof. To this order plaintiffs herein excepted but did not appeal. The plaintiffs were parties defendant in the former action instituted by the Land Bank and are bound by the judgment entered. They twice appeared therein by motion and presented to the court the identical questions they now seek to present. The facts were found adversely to them and judgments were entered accordingly. While they excepted to the judgment entered by Bivens, J., they did not perfect their appeal. When they appealed from the order of Clement, J., the relief they sought was granted only to the extent that a correction of the judgment was directed. The judgments entered in the former action on the motions made therein constituted a final adjudication of their right to an order restraining the service of the writ of assistance issued by Nettles, J. Possession is an incident to ownership and the right of the possession was at issue in that case. Plaintiffs have had their day in court in respect thereto. Now, by independent action, an effort is made to have another Superior Court judge to review the findings and conclusions of the two judges who heard the motions in the original action in a further effort to prevent the execution of the judgment decreed therein. The plaintiffs may not be permitted to so delay the enforcement of a judgment in an action in which they were parties and by which they are bound. Even if it be conceded that they may seek, in an independent action, injunctive relief against the issuance or the service of the writ of assistance, the matters at issue in that respect have already been adjudicated. It is well established in this jurisdiction that one Superior Court judge may not review the judgment of another Superior Court judge or restrain him from proceeding in a cause in which he has full jurisdiction. Mitchell v. Talley, 182 N. C., 683, 109 S. E., 882; Caldwell v. Caldwell, 189 N. C., *150 805, 128 S. E., 329; Dockery v. Fairbanks, 172 N. C., 529, 90 S. E., 501; Broadhurst v. Drainage Comrs., 195 N. C., 439, 142 S. E., 477; Price v. Ins. Co., 201 N. C., 376, 160 S. E., 367; Newton & Co. v. Mfg. Co., 206 N. C., 533, 174 S. E., 449. The court, on motion in the cause and after notice, may stay or recall an execution. Greenlee v. McDowell, 39 N. C., 481; Williams v. Dunn, 158 N. C., 399, 74 S. E., 99; Aldridge v. Loftin, 104 N. C., 122; Beckwith v. Mining Co., 87 N. C., 155; Faison v. McIlwaine, 72 N. C., 312; Foard v. Alexander, 64 N. C., 69. A writ of assistance is in the nature of an execution. The motion in the cause to enjoin or stay its issuance, the method first adopted by plaintiffs, was their proper remedy. Furthermore, in their petition and motion for injunctive relief, whether we consider that it was made in one or both of the pending actions, reference is made to the Land Bank judgment thereby incorporating the same in the motion. Therefore, a consideration of the record leads us to the conclusion that the plaintiffs have failed to establish, in this action, any right to injunctive relief. The court below has not undertaken to determine, as these plaintiffs assert, the merits of the plaintiffs’ cause of action in which they claim the ownership of the mineral rights in the tract of land in question. They are at liberty to pursue this action to its final determination. In the meantime, they must surrender possession of the premises in accord with the former opinion and writ of assistance issued pursuant thereto. Whether plaintiffs are entitled to such right of ingress and egress, etc., as may be necessary to enable them to make use of the mineral rights they claim to own is not adequately presented. The judgment below is Affirmed.