Holden v. . Totten

Seawell, J. When we follow the record step by step, in this protracted litigation we are left with few comments on the result. The challenge to the original judgment went into the archives with its approved correction and the intervention in due course of a problem *207 more vexing to tbe present appellant in the later judgment on the seper-sedeas bond with the enforcement of which the present appeal is concerned. Singularly enough, in the present action, the plaintiff harks back to the judgment in the original suit, leaving the judgment on which execution has been issued practically unassailed, although it is of independent force. If the original judgment were at this time open to challenge, it would be a strange sort of equity that would permit the defendant in execution to stay proceedings by successive injunctions until, in the ripeness of time, he could effectively plead the statute of limitations. In a similar connection Judge Storey said: “A party shall not avail of a legal right for the purpose of fraud, oppression, injustice, or injury.” In Marshall v. Minter, 43 Miss., 666, from which the above quotation is taken, it is said: “Where a party gains a legal advantage by the act or omission of the court, equity ought not to allow him to avail of it; that if the advantage consists in'the bar of the statute of limitations, accrued pending an injunction, although the creditor might have had, on motion, a modification of the restraining order, so as to save his right, his omission to make the application shall not prejudice him.” See Anno., 21 A. L. B., 1057, (YI). The plea that plaintiff in that action was released by the composition of Warren with the original creditor — the Joint Stock Land Bank, — or his release by the bank, should have been made in the original action, if available at all; in other words, it was his duty to put that matter in litigation at the first opportunity; and he has suffered two judgments to be entered against him fixing his liability and the amount due, one by default and the other without appeal. The present plaintiff has brought two independent actions relating to his supposed matters of defense in the original action brought by the Joint Stock Land Bank Co. The first of these actions was for the purpose of having the former judgment declared void; and an independent action for that purpose is within the law and the practice. In this he failed. The present action stands upon a different footing. The plaintiff cannot, through the instrumentality of an independent action, instigate a review of the various processes, orders, and judgment validly made by a court in the exercise of its jurisdiction in another proceeding, and final in their nature, where neither fraud nor essential invalidity appears. Development Co. v. Bearden, 227 N. C., 124; Privette v. Morgan, 227 N. C., 264. We find no error in the record and the judgment of the court below, dissolving the injunction and dismissing the action, is Affirmed.