James v. Markham

MONTGOMERY, J. Tbe plaintiffs Rowland & Cooper are tbe common debtors of tbe other plaintiffs and tbe defendants, except Markham. Tbe defendant Carr is a creditor by judgment lien of prior date to tbe incumbrances by way of mortgage of tbe other creditors. Tbe object of this action is to compel the judgment creditor to levy upon and sell tbe real estate of tbe debtors, all of which was conveyed at different times and in separate parcels, by the rule of inverse order of alienation, that is, in the order in winch it was conveyed in the respective mortgages ; tbe allegations being that by such an order of sale all tbe debts can be paid, and that if tbe rule is not observed tbe other creditors, than the judgment creditor, will suffer. An order was granted restraining the judgment creditor and tbe sheriff from selling any of the debtor’s real estate under tbe execution issued upon the judgment, and upon an application to continue tbe order of restraint — for an injunction until tbe bearing — the motion was refused, and tbe restraining order dissolved. There was no error in tbe course taken by bis Honor. There was no allegation that tbe judgment or mortgage creditors were insolvent, and no allegation that irreparable loss would come to tbe plaintiffs if tbe restraining order was not continued. Tbe main action is still pending, and whatever rights tbe plaintiffs may have, can be established in that suit. Tbe plaintiffs further excepted to tbe refusal of bis Honor to allow a bond in tbe nature of a supersedeas for tbe purpose [152] of continuing tbe effect of tbe restraining order until the bearing, notwithstanding tbe order bad been dissolved by bis Honor. No sucb practice is allowable. “An appeal being merely tbe act of tbe party can not of itself affect tbe validity of tbe order of tbe Court, nor can it give new life and force to an injunction which tbe Court bas decreed no longer exists.” High on Injunction, sec. 893; Green v. Griffin, 95 N. C., 50. No error.