Chambers v. . Penland

Smith, C. J. (After stating the case as above.) We are of opinion that the injunction was properly refused. The summary mode of proceedings adopted to enforce payment of the debt is authorized by law, under au express adjudication in this Court. Rev. Code ch. 31 § 129; Mauney v. Pemberton 75 N. C. 219. The general guardian is the proper person on whom process against infant defendants should be served, and it is his-duty to protect their interest in the suit. Bat. Rev. C. C. P. § 59. If there were such irregularities in the preliminary proceedings as to impair the title to the land derived under the plaintiff’s sale, they are corrected and cured by the subsequent action in the Probate Court. But were it otherwise, the obvious and appropriate remedy was open to the pur *56 -chaser by process issuing from the Probate Court to call upon those who were not properly made parties to come in and confirm or repudiate the sale, and it was his duty to re■sort to this course before asking to have the contract annulled, and himself freed from its obligation. Unless this remedy was unavailable, he was not entitled to relief by in-j unction. In this connection we desire to advert to a pracr tice which has become quite common, and is entirely at variance with the provisions of the Code. We refer to the .practice of seeking relief from a judgment by an injunction, .addressed to the plaintiff, issued in a new independent action, and sometimes from a different jurisdiction. As a provisional remedy, injunctions are granted in furtherance of a claim or right which the plaintiff asserts iu an action. C. C. P. § § 188, 196. While the action is p>ending, relief can he obtained by a ■defendant aggrieved by a judgment, by his applying to the •Court wherein it was rendered for a modification, and meanwhile for a supersedeas, or other order arresting proceedings, until the application can be heard. ■ He is not allowed to seek redress from the action of one Court, through the conflicting and repugnant action of another Court, or in a different and distinct proceeding in the same Court. Nor is it proper for one Court, or the same Court in another action, by a personal order directed to the plaintiff, to deprive him of those advantages and rights to which it has ■been adjudged he is entitled, while such judgment remains in force. In our case the Probate Court ivas the appropriate and ■only place in which the defendant could obtain redress, and its power was ample for the purpose. The Judge to whom application for the injunction was made was without jurisdiction in the premises, unless the matter came before him *57 ■on appeal. The defendants’ motion was properly refused. There is no error and the judgment is affirmed. No error. Per Curiam. Judgment affirmed.