Washington v. Emery, 57 N.C. 29, 4 Jones Eq. 29 (1858)

June 1858 · Supreme Court of North Carolina

57 N.C. 29, 4 Jones Eq. 29

JOHN N. WASHINGTON against THOMAS R. EMERY.

An injunction is a secondary process, (except it be for the prevention of torts),- and must bo asked in aid of some primary equity, which must be disclosed, in the same bill that prays it.

An injunction to stay proceedings, at law, because another bill was pending, which embraced the same cause of action as that asserted in the suit at law, Was Hold to have been improvidontly issued, and should be dissolved on motion. The proper course would have been to file a petition, or make a motion for the injunction in the suit already pending.

Appeal from the Court of Equity of Craven county.

The bill alleges that the plaintiff, as administrator, with the will annexed, of Mrs. Yail, filed a bill in the Court of Equity of Craven county, in March last, against Thomas R. Emery, stating difficulties, and praying for advice as to the proper construction of certain items of the will of-his testatrix, most of which difficulties are re-stated in this bill, and amongst others, that he had in good faith changed an investment from a note on one Blackwell, which he deemed doubtful, to one in Rail-road stock, which was much better and safer than the former, and of which the defendant refused to receive his proportionate part. The prayer of which pending bill was, that the equities of the defendant and the other legatees, under the will of Mrs. Yail, might be declared by the Court. The bill, in this case, alleges that notwithstanding the pendency of the former suit, and even after there had been a decree for the plaintiff to account, the defendant sued him as administrator, with the will annexed, of Mrs. Yail, with his sureties, upon the administration bond which he gave on his appointment, alleging as a breach, the non-payment of the legacies which were due him, and was pressing the said suit against him to judgment. The prayer is for an injunction to restrain the defendant from thus proceeding at law. The defendant answered, but the statements of his answer are not material to the question discussed by the Court. On the coming in of the answer in the Court below, defendant moved for the dissolution of the injunction, which was ordered, and the plaintiff appealed.

J. W. Bryan and Stevenson, for the plaintiff.

Haughton and Hubbard, for the defendant.

Pearson, J.

There is no error in the interlocutory order appealed from. The injunction ought to have been dissolved, on the ground that it was improvidently granted. The bill discloses the pendency of another suit, in which the relief prayed for might have been obtained upon a motion, or by petition in that cause, so, there was no necessity for a second original bill.

In the second place, this bill cannot “stand alone.” It seeks merely for an inj unction against the action at law; and according to the course of this Court, except it be for the prevention of torts, an injunction is a secondary process, in aid of some primary equity which the bill seeks to have established. Here there is no primary equity in aid of which the injunction was asked for, which could be made the subject of this bill, or which it seeks to have established, because the plaintiff had already filed a bill for the purpose of having the equities of all the parties under the will of Mrs. Vail declared. That a bill will not lie simply for an injunction, except in case of torts, is clear. Eor instance, a mortgagor cannot maintain a bill to enjoin the mortgagee from taking possession; he must ground the bill upon his equity to redeem, and until that can be established an injunction will be issued, auxilliary. So one cannot maintain a bill to enjoin an execution on a judgment at law, except it be in aid of some equity against the legal right which the bill seeks to set up. So in all cases of the kind, some primary equity must be alleged, or the bill cannot stand.

In the third place, considering the bill as a distinct and independent proceeding, the other defendants in the action at law are necessary parties, and it is only -when moving in the original cause that the plaintiff can be heard without joining the other obligors. He will then be permitted to make the motion alone in respect to the parties to that suit — it being necessary for the protection of himself and the other obligors who are Ms sureties — the rules concerning Üiq jpwtíes to a suit, not being applicable to a motion or petition in a cause which is pending and has been properly instituted.

Per Curiam. Decretal order affirmed.