Davis v. . Whitehurst

Baknhill, J. This action is not in the nature of a creditors’ bill. 14 A. J., 679; Hancock v. Wooten, 107 N. C., 9. It is an action at law *228 in which the cause of action of each plaintiff is several. Neither has any interest in the claim of the other. Hence, there is a misjoinder of parties and causes of action. Beam v. Wright, 222 N. C., 174, 22 S. E. (2d), 270; Wingler v. Miller, 221 N. C., 137, 19 S. E. (2d), 247; Frederick v. Insurance Co., 221 N. C., 409, 20 S. E. (2d), 372; Osborne v. Canton, 219 N. C., 139, 13 S. E. (2d), 265; Holland v. Whittington, 215 N. C., 330, 1 S. E. (2d), 813; Smith v. Land Bank, 213 N. C., 343, 196 S. E., 481; Vollers Co. v. Todd, 212 N. C., 677, 194 S. E., 84. It is true plaintiffs allege that the contract between defendants and A. C. Wheeler for the operation of the hotel was “tainted with fraud or constructive fraud, and is and was a fraud attempted to be perpetrated on the creditors of said hotel.” Yet no fact or circumstance tending to sustain the allegation is alleged. Colt v. Kimball, 190 N. C., 169, 129 S. E., 406; Griggs v. Griggs, 213 N. C., 624, 197 S. E., 165. Furthermore, plaintiffs were not creditors at the time the contract was executed. Hence the complaint cannot be construed as an action in tort to annul the contract as a fraud upon creditors. Likewise, it would be somewhat novel for the Court to hold that one Superior Court Judge can enjoin another Superior Court Judge from proceeding in an action duly constituted and pending before him. Certainly no facts are alleged which would warrant such action. The motion to strike the demurrer was without merit. The judgment sustaining the same must be affirmed. The judgment entered fixed the rights of the several plaintiffs against A. C. Wheeler only. Defendants are not bound thereby. Sale of the property therein inventoried, under execution, would convey nothing more than the right, title and interest of Wheeler. Hence defendants have no such interest as would entitle them to move to vacate. Furthermore, the judgment is a judgment by consent. It is a contract between the parties thereto. Carpenter v. Carpenter, 213 N. C., 36, 195 S. E., 5; Webster v. Webster, 213 N. C., 135, 195 S. E., 362. It cannot be modified or set aside without the consent of the parties except for fraud or mistake, and this must be by independent action. Keen v. Parker, 217 N. C., 378, 8 S. E. (2d), 209. It follows that so much of the judgment of the court below as undertakes to vacate the same must be held for error. Title to the personal property inventoried in the consent judgment against which execution is authorized is at issue in the Madison County cause and is in custodia legis. Execution against this specific property was improvidently issued. The clerk, so soon as the facts were called to his attention, properly and promptly recalled the same. Plaintiffs, before proceeding against this property must await the final determina *229 tion of the Madison County case or at least until the receiver is discharged and the property released by that court. The cause is remanded to the end that judgment may he entered in accordance with this opinion. Modified and affirmed.