Gower v. Town of Clayton

WiNBORNE, J. On this record writ of assistance will not issue. “The writ of assistance, in its ordinary acceptance, is one issuing from a court having general equitable jurisdiction for the enforcement of decrees or orders conferring a right to the present possession or enjoyment of property. It usually issues on motion after notice duly served, when the right thereto is clear, and, as a rule, only against parties or persons bound by the terms of the decree,” Hoke, J., in Clarke v. Aldridge, 162 N. C., 326, 78 S. E., 216. Knight v. Houghtalling, 94 N. C., 408; Coor v. Smith, 107 N. C., 430, 11 S. E., 1089; Exum v. Baker, 115 N. C., 242, 20 S. E., 448; Wagon Co. v. Byrd, 119 N. C., 460, 26 S. E., 144; Lee v. Thornton, 176 N. C., 208, 97 S. E., 23; Bank v. Leverette, 187 N. C., 743, 123 S. E., 68; Warehouse Co. v. Willis, 197 N. C., 476, 149 S. E., 679. Here, while Mrs. W. M. Priddy was named a party defendant to the tax foreclosure suit, she was not served with original summons. The *311 process was not kept alive by alias and pluries summons as required by statute. C. S., 480. This worked a discontinuance of tbe action as to ber. Summons served thereafter constituted a new action against ber, “beginning wben tbe summons was issued” — 14 February, 1938. O. S., 481. Prior thereto, on 28 January, 1938, tbe interest of Mrs. Priddy bad been sold and conveyed to plaintiff, Mrs. Bertie T. Glower, by tbe commissioners, Parker and Shepard. Therefore, it would seem that at least in so far as that interest is concerned, tbe plaintiffs would not be bound by tbe judgment in tbe said tax foreclosure suit. Hence, tested by tbe above stated rule of law, it does not appear that tbe town of Clayton has a clear right to tbe possession of tbe real estate in question — and there is error in dissolving tbe injunction. Other questions discussed in briefs here need not now be considered. Tbe judgment below is Beversed.