Byerly v. Delk

Johnson, J. It is established by authoritative decisions of this Court that where the purchaser at a judicial sale fails to comply with his bid, ordinarily the remedy is by motion in the cause, and not by independent action. On such motion the jurisdiction of the court is broad enough to give either the purchaser or any other interested party the relief which the situation as presented requires. The procedure by motion in the cause provides expeditious relief, prevents multiplicity of suits, and saves costs. If an independent action is brought, ordinarily the court ex mero motu will dismiss it. Wilson, Ex Parte, 222 N.C. 99, 22 S.E. 2d 262; Marsh v. Nimocks, 122 N.C. 478, 29 S.E. 840; Long v. Jarratt, 94 N.C. 444. In Long v. Jarratt, supra, a purchaser at a judicial sale assigned his bid. The assignee paid the purchase price but died before deed was executed. His administrator and heirs at law instituted an independent action to compel execution of the deed. Mferrimon, J., speaking for the Court, said: “The Court ought not, and will not, in another proceeding or action, take jurisdiction of the same parties and the same subject matter, and do therein what ought properly and regularly to be done in the incomplete proceeding. The law requires consistency in procedure, and in the exercise of jurisdictional authority. It avoids and prevents confusion and multiplicity of actions in respect to the same cause of action, and it will not allow its purpose in these respects, to be defeated by the consent, assent, or inadvertence of parties. Hence it will not tolerate the inconsistency and practical absurdity, of suspending or stopping an action before it is completed, and do what ought legitimately to be done in it, in another and distinct action. “Therefore, when the Court sees its jurisdiction, already attached [556] as to the same parties and the same subject matter, in a former action not yet ended, interfered with by another subsequent action, in respect of a matter that ought properly to be considered and determined in the former action, the Court ought, ex mero motu, to refuse to proceed in respect to such matter, and send the parties complaining, to seek their remedy and relief in the former and proper action, and if the subsequent action has reference to such matter only, it ought at once to be dismissed, as having been improvidently brought. ...” In Marsh v. Nimocks, supra, it is said: “In a proceeding to sell land for assets the court of equity has all the powers necessary to accomplish its purpose, and when relief can be given in the pending action it must be done by a motion in the cause and not by an independent action. The latter is allowed only where the matter has been closed by a final judgment. If the purchaser fails to comply with his bid, the remedy is by motion in the cause to show cause, etc., and if this mode be not pursued, and a new action is brought, the court ex mero motu will dismiss it. This course is adopted to avoid the multiplicity of suits, avoid delay, and save costs. Hudson v. Coble, 97 N.C. 260; Pelillo ex parte, 80 N.C., 50; Mason v. Miles, 63 N.C., 564, . . .” The judgment rendered below will be treated as erroneous and set aside; and the action will be dismissed. It is unnecessary to discuss serious procedural irregularities disclosed by the judgment roll in the Guilford County case. Action dismissed.