Coward v. . Chastain

Smith, C. J., (after stating the case). From the copy of the judgment sent up in the case on appeal, it appears to 'have been rendered at the October Term, 1872, of the Superior Court of Clay County, and had this evidence been before the Judge, as it seems not to have been, and the defendants had asked for an injunction, it would doubtless have been granted, since a sale under such a judgment, unrenewed, would be inoperative to pass the title, as declared in Lyon v. Russ, 84 N. C., 588; Lytle v. Lytle, 94 N. C., 683. This is of course upon the assumption that the vitality of the judgment has not been preserved by a continued issue of executions, under § 440 of The Code. If the judgment be not only dormant, but barred by the lapse of time, and this the execution, if truly speaking the •time of the rendering of the judgment would, show upon its face, its issue would confer no right to sell, and the sale, if made, would be ineffectual to pass title. In such case, no harm could come from the refusal to grant the order of injunction. But, however this may be, as it was not asked, nor any reason shown why a restraining order should be made, it was not error to refuse, or rather to fail to make it when not •demanded. *445 We again call attention to the irregularity in the mode of' proceeding adopted, in that, while the right to process to enforce the judgment by appropriate remedies remains unimpaired, its exercise is restrained. This, of necessity, was-the proper course of procedure under the former divided jurisdictions, in which a Court of equity, without a direct interference with the action of a Court of law, exercised authority over the person of the suitor, and restrained his oppressive • and wrongful use of a legal right. No interference in a separate suit was permissible in a pending suit between the-parties in a Court of equity, and now, when there is but one tribunal, the redress is by a direct interposition, recalling and modifying the process in a proper case, and meanwhile - issuing a supersedeas order to the officer in possession of it. Chambers v. Penland, 78 N. C., 53; Parker v. Bledsoe, 87 N. C., 221. There is no error, and the judgment is affirmed. Affirmed.