Opinion
(June Term, 1864.)
1. A person acting as an officer of the law under a judicial order or judgment ought not to be made a party defendant to a bill for an injunction to restrain the execution of such order or judgment.
2. The State courts have no jurisdiction to restrain persons from acting under the orders or judgments of the Confederate courts, unless they have been obtained by fraud. Whether they have jurisdiction then, this Court declines to express any opinion. They have no jurisdiction to review the proceedings of the Confederate courts.
3. The Court cannot give relief on the ground of frauds, unless it be positively and distinctly alleged.
(609) THE bill charges that a corporation was created by the General Assembly of this State for the purpose of working the coal and iron mines at Egypt, in Chatham County, by the name of "The Governor's Creek Coal and Iron Manufacturing and Transportation Company"; that they engaged extensively in the business for which they were created, and the original plaintiff, William H. McLane, was employed as mining engineer and manager in 1852, and has continued to act as such until November, 1862, he being also a large shareholder — and the largest shareholder who is a citizen of the Confederate States; that nine-tenths of the stockholders are citizens of the United States; that the company are indebted to him in the sum of $4,870, or thereabouts, for arrears of salary and advances made by him; that suitable buildings had been erected by him by order of the stockholders, for the officers of the company, and that one of them has been occupied by him, by assignment of the company, as a dwelling-house ever since it was built, and is now occupied by him; the plaintiff was served with process from the District Court of the Confederate States for the District of North Carolina to appear at said court to be holden at Goldsboro on .... November, 1861, to make a disclosure of all he knew concerning the company and its affairs; he appeared at court and filed his garnishment. Such proceedings were had that an order was made by the district judge at chambers that the plaintiff should be removed from his office as manager and a successor appointed, and in obedience thereto Manning, the receiver, appointed J. N. Clegg manager. Clegg was afterwards removed by order of the court, made without notice of any proceeding intended to be had in the matter, and the defendants Brown and Mallett appointed managers. The plaintiff charges that in the proceedings (610) of the District Court the requirements of the sequestration act were not pursued, and that no decree sequestrating the Egypt property has ever been made. He charges that secret information has been given by one of the defendants, not saying which defendant, nor what the information was, nor that it was false, and he also charges that the "defendants Brown and Mallett have from the first court held in November, 1861, to the last of November, 1862, been unceasing in their efforts to have him (the plaintiff) removed, without cause, and solely with the view of being put into the management themselves." The bill contains no other charge or insinuation of fraudulent conduct or bad motives on the part of the defendants. It then charges that an order was made by the District Court at November Term, 1862, that the plaintiff should be turned out of possession of the house in which he dwells, and that notice in due form of law had been given to him that the order would be executed on the Monday next following the day on which the bill was presented to the judge. The prayer is for an injunction.
An injunction was issued in pursuance of the order of a judge in vacation. At the return term the defendants demurred to the bill, and the cause was transferred to this Court by consent.
Pending the suit the plaintiff died, and Rachel McLane, his administratrix, was made plaintiff.
No counsel for plaintiff.
Phillips for defendants.
The fiat for an injunction in this case was made by me in vacation. The application for it was presented under such circumstances as to allow me no time for an examination of the authorities bearing upon the questions involved, and very little opportunity for (611) reflection. Having now had the aid of an argument and of a conference with my brethren, I have, after mature consideration, come to the conclusion with them that the order was improvidently granted and that the demurrer must be sustained and the bill dismissed.
It is necessary for us to notice only one or two of the questions raised by the pleadings, as they are sufficient to dispose of the case.
The defendant Manning, appointed a receiver under an act of the Provisional Congress of the Confederate States, entitled "An act for the sequestration of the estates, property, and effects of alien enemies, and for an indemnity of the citizens of the Confederate States, and persons aiding the same in the existing war with the United States" (see acts of the third session of the Provisional Congress, No. 269), was only an officer of the law, and was as such improperly made a party defendant, and as to him the bill must therefore be dismissed with costs. Edney v. King, 39 N.C. 465; Lackay v. Curtis, 41 N.C. 199.
As to the other defendants, Mallett and Brown, if the Court could entertain jurisdiction at all to restrain them from acting under the orders from the Confederate Court, it must be on the ground of fraud practiced by these defendants in obtaining the orders. Now, in this case no such fraud is positively and distinctly charged in the bill. In one place it is said that one of the defendants — whether Mallett, Brown, or Manning is not stated — was a secret informer, but whether the information given was true or false is not alleged. In another part of the bill it is charged that "the defendants Brown and Mallett have, from the first court held in November, 1861, until the last held in November, 1862, been unceasing in their efforts to have him (the plaintiff's intestate) removed without cause, and solely with the view of being (612) put into the management themselves." These are rather insinuations of fraud than positive and distinct charges of it, and when taken in connection with the fact that the relief sought is not put upon the ground of fraud, but upon other and different grounds, the Court cannot make that the basis of a decree for relief, where there are no other elements of equity. (See Witherspoon v. Carmichael, 41 N.C. 143.)
This Court has no jurisdiction to review the proceedings of the Confederate Court; and without deciding whether it might not restrain parties from availing themselves of its orders or decrees, when obtained by fraud positively charged and proved or admitted, it will not interfere in the absence of such allegations. The demurrer must be sustained and the bill dismissed with costs as to these defendants also.
Cited: Harshaw v. McCombs, 63 N.C. 77; Gilmer v. Hanks, 84 N.C. 320; Stout v. McNeill, 98 N.C. 3; Anderson v. Rainey, 100 N.C. 334.
NOTE. — It is improper to make a sheriff a party to an order of injunction against process in his hands. Jarman v. Saunders, 64 N.C. 367. Conflict of jurisdiction discussed in S. v. Hoskins, 77 N.C. 530.
If fraud be the ground of relief, it must be distinctly and positively alleged, and either admitted or supported by proof. Harshaw v. McCombs, 63 N.C. 75.