Opinion
(Filed 13 December, 1913.)
Mortgages — Foreclosure — Equity — Creditor's Bill — Writ of Supersedeas.
On appeal from the refusal of the Superior Court judge to presently render a decree of foreclosure of a mortgage on which he had entered judgment for the amount of the debt, the plaintiff moved in the Supreme Court for a writ in the nature of a supersedeas, restraining the enforcement of a decree in another pending action, in the nature of a creditor's bill, involving the property subject to the mortgage, in which a receiver had been appointed to take charge of the lands. Held, the rights of the petitioning plaintiff are fully protected in the proceedings sought to be restrained by him, and the motion is denied.
APPEAL by plaintiff from Lyon, J., at October Term, 1913, of CUMBERLAND.
Shaw McLean for plaintiffs.
Winston Biggs, Robinson Lyon, and Cox Cox for defendants.
This was an action instituted in the Superior Court of Cumberland County to foreclose a mortgage, given by J. Sprunt Newton and wife, on a tract of land in said county to secure the sum of $25,000, and held by Adam McArthur, one of the petitioners. That on verified complaint, duly signed, there was judgment for the debt, the court declining, for reasons appearing of record, to enter a present judgment of foreclosure. From this refusal to presently decree foreclosure, the plaintiffs appealed and moved in this Court for a writ in the nature of a writ of supersedeas, restraining the enforcement of a decree in another action pending in said county, in which a receiver has been appointed to take charge of the lands, have the timber thereon cut and disposed of for the benefit of the creditors, including the plaintiffs, and the proceeds paid to said creditors, under the order and supervision of the court.
The latter action was in the nature of a creditor's bill against the owners of the property and others, seeking to enforce the collection of their claims, and seems to have been instituted before any complaint was filed or other notice given in the present suit, (384) as to the nature of or extent of plaintiff's claim.
On perusal of the record and the facts appearing in the present petition, the Court is of the opinion that as the matter now appears the petitioners have an ample opportunity to assert their claims by making themselves parties to the creditor's bill in which the receiver has been appointed, and that they should take this course if they should deem it necessary to properly protect their interests.
Even when allowable, a writ of this kind is only granted in case of necessity. The application of the writ is therefore denied.
Motion denied.