We are not informed by His Honor nor by any statement of the case, as it is called, on what ground this action was dismissed. We are told by counsel in their argument here, that it was done because there was another proceeding pending in which the plaintiffs could have com píete relief, and that, therefore, this action can not be sustained. This objection is not made by demurrer, plea or answer, but it is insisted that this Court, looking at the pleadings alone, can see, as a matter of law, that the plaintiffs had a complete remedy in another proceeding therein referred to. On reference to the pleadings we find the plaintiffs alleging that the defendant is indebted to them for monies received by him as commissioner, being the share of the feme plaintiff in the funds arising from the sale of certain lands in Perquimans county, described in the petition of Joseph W. Barrow, and others, ex parte, and the defendant admitting that “ he received for the use of the said Martha the sum of $ — , being her share of the fund arising from the sale of certain lands in Perquimans county, described in the petition of .Joseph W. Barrow, and others, ex parte, filed by the said defendant as attorney for the peti*85tioners,” and alleging that be has paid the plaintiffs, with which, however, we have nothing to do at present The record also shows that a jury trial was had at Spring Term, 1877, and the verdict of the jury was set aside, and that at Spring Term, 1878, the action was dismissed as above stated. This is all we find in the record material to our inquiry. We can not tell whether the sale was made under our former system of Courts, or in the Probate Court, under the present system, and we can see nothing of the orders or decrees fixing the duties of the commissioner, but the defendant admits that he received the money for the feme plaintiff. If two actions are between the same parties and for the same cause of action, and the first is still pending and so constituted as to afford complete relief to the complainant, either plaintiff or defendant, then the second is unnecessary and must be dismissed.
If a final decree has been entered in the first, this would bar a new action, and even a motion, in the same, until the decree is impeached for some cause and vacated. If the allegation in the second action should set forth the substance of the pleadings in the former, and disclose facts entitling the party to the same measure of final relief in the first action, and demands nothing more, then it would be demurrable. The defendant thinks his case is within this rule, although he fails to demur, plead or answer to this effect, and cites several cases in our reports, in support of his position. We have examined them, and no one of them fits his case. All of them refer to controversies among the purchasers, or to an adjustment of equities among sureties, or to demands by the owners of the fund against the purchasers, or some one claiming under them. None of them, nor any we have been able to find, embrace the case of a commissioner making a judicial sale. He might be discharged from his office at any time by the Court, without affecting the rights of the status of the parties in Court.
*86It is true be is liable to an attachment for disobedience or failure to do his duty, but this is a remedy in personam merely. The Court has no power to award judgment and ■execution against his property. It may do so against the purchaser of property at its own sale, upon proper notice and in a summary way. Rev. Code, ch. 31, § 129. It may do so in the same way against sheriffs, coroners, constables, clerks and clerk and masters, when they have received money by virtue or under color of their offices. Rev. Code, ch. 78, § o. This power is derived from statute, and is limited to the persons therein named. We are therefore unable to see that the plaintiffs could obtain full relief in the original proceeding against the commissioner, the defendant in this .action, and are' therefore unable to say that this action was ■unnecessary and improperly begun.
Error.
Per Curiam. Judgment reversed.