Opinion
(June Term, 1867.)
1. Where a complainant can obtain the money desired under a bill already filed by him, it is improper to commence another suit therefor.
2. (Application of the rule, that except in a few cases an injunction can be issued only as auxiliary to some primary equity.)
MOTION to dissolve an injunction, heard before Shipp, J., at Spring Term, 1867, of BERTIE.
Winston, for the appellant.
Gilliam, contra.
The bill alleged that the defendant, as trustee, had exposed to public sale a tract of land, and that the complainant became the last and highest bidder therefor; that the defendant refused to execute a conveyance; and the complainant had theretofore filed a bill for specific performance, which was still pending; that since the filing of such bill the defendant had commenced an action of ejectment against her, and threatened to turn her out, etc., etc.
Under this she had obtained a preliminary injunction, which, upon the coming in of the answer, the defendant moved to dissolve. The court refused to dissolve, and the defendant appealed.
It has been repeatedly said by this court that except in a few cases, such as to stay waste or to prevent irreparable injury, an injunction can be issued only as auxiliary to some primary equity. Stockton v. Briggs, 58 N.C. 309; Schofield v. Van Bokkelen, Ib., 342; McRae v. Railroad Company, Ib., 395. In the present case the bill states indeed a primary equity, but does not seek to set it up, for (228) the reason that another bill had been filed, and was still pending, for the purpose of effectuating that object. In that suit the plaintiff might have obtained an order for staying the action of ejectment at law until the hearing, so that there was no necessity whatever for the present proceeding. The defendant ought not to be harassed by two suits, when the plaintiff might have obtained all the relief to which she was entitled in one. It must be declared, therefore, that the present bill was improperly filed, and the injunction improvidently granted. See Rogers v. Holt, ante, 108.
The interlocutory order overruling the motion to dissolve the injunction must be reversed with costs, and the cause remanded for further proceedings in the court below.
PER CURIAM. Order accordingly.
(229)