#### BILL HUMPHREY v. S. R. CHURCHILL, Sheriff of LENOIR COUNTY.

(Filed 8 May, 1940.)

1. Nuisances § 11: Execution § 11 — Remedy to prevent sale of chattels not used in operation of nuisance is by motion in the cause.

• In a proceeding under C. S., 3180, *et seq.,*judgment was entered upon determination that the defendant therein was operating a nuisance against public morals, directing that the personal property of defendant used in *531the operation of the nuisance be sold in accordance with C. S., 3184. Thereafter the defendant in that proceeding instituted this action against the sheriff to restrain the sale of certain of the personal property upon allegations that the property specified had not been used in the operation of the nuisance and that the sheriff was about to sell it under the prior judgment. There was neither allegation nor contention that the execution was void. *Held:*The temporary restraining order was properly dissolved, the proper remedy being by motion in the cause and not by independent action to restrain the sheriff from selling the chattels as directed by the prior judgment.

2. Execution § 11 — Complaint in independent action to restrain execution cannot be treated as a motion in the cause when plaintiff in former action is not a party.

Where judgment directing the sale of personal property used in the operation of a nuisance is entered in a proceeding instituted by the solicitor, the complaint in an independent action thereafter instituted against the sheriff alone by the defendant in the former proceeding to restrain the sale of certain of the personalty on the ground that it was not used in the operation of the nuisance cannot be treated as a motion in the cause, since the plaintiff in the former action is not a party.

Sea well, J., dissenting.

Stagy, C. J., and Winborwe, J., concur in dissent.

Appeal by plaintiff from *Cowper,*at December Term, 1939, of LeNoie.

Affirmed.

*Louis I. Rubin and Button & Greene for plaintiff.*

*Thos. J. White for defendant.*

DeviN, J.

This action was instituted to restrain tbe sale of certain personal property of tbe plaintiff Bill Humphrey, wbicb it is alleged tbe defendant sheriff was threatening to sell, pursuant to a judgment of tbe Superior Court.

Plaintiff alleged that in tbe case entitled “State *ex rel.*Barker, Solicitor, *v.*Bill Humphrey,” an action instituted and prosecuted to judgment against him under tbe provisions of C. S., 3180 and 3184, relating to tbe abatement of nuisances, it was adjudged that a public nuisance as defined by tbe statute bad been maintained by Bill Humphrey at tbe place known as Bill Humphrey’s Filling Station, and tbe premises where said business bad been carried on, together with tbe furniture, fixtures, stock of goods and other personal property used in tbe operation of said business, were declared a nuisance, and tbe sheriff was ordered to remove all fixtures, furniture, musical instruments and other movable property used by Bill Humphrey in conducting said nuisance and to sell tbe same in tbe manner provided by law.

*532Tbe plaintiff Bill Humphrey alleged in tbe present action tbat tbe stock of goods referred to in tbe judgment bad not been used in tbe conduct of a nuisance as defined by tbe statute, and tbat tbe sheriff, pursuant to said j'udgment, was wrongfully threatening to sell same. He prayed that tbe defendant sheriff be restrained from selling this property.

Plaintiff attached to bis complaint in this action the pleadings, order, and j'udgment in tbe former action wherein be was tbe defendant. From these it appears tbat it was alleged in tbe complaint in tbe former action tbat “said business, furniture, fixtures, money, merchandise, stock of goods and all other personal property of tbe defendant Bill Humphrey which may be found in and about the said Bill Humphrey’s Pilling Station constitute a public nuisance which in tbe interests of tbe public morals and decency should be abated.” Upon tbat complaint tbe order of Stevens, J., required tbe delivery to tbe sheriff of “all the personal property, equipment, fixtures, money, merchandise and musical instruments used in connection with tbe conduct or maintenance of said establishment or business located therein.”

Bill Humphrey filed answer denying tbat a nuisance bad been maintained as alleged. Upon tbe trial of tbe issue in tbe former suit verdict was rendered against Bill Humphrey, and tbe j'udgment decreed tbat tbe premises where tbe business of Bill Humphrey, known as Bill Humphrey’s Pilling Station, bad been carried on “together with said business, furniture, fixtures, money, merchandise, stock of goods and other personal property of defendant Bill Humphrey which have been used in tbe operation of said business” constituted a public nuisance as defined by cb. 60, Consolidated Statutes, and tbe sheriff was ordered to remove all fixtures, furniture, musical instruments or other movable property which have been used by defendant Bill Humphrey in conducting said nuisance, with directions, in tbe language of C. S., 3184, tbat same be sold in tbe manner provided by law.

To this j'udgment Bill Humphrey noted exception, but did not perfect bis appeal, and same was dismissed on motion.

Thus it appears tbat tbe matters upon which Bill Humphrey sues in this action were presented under tbe pleadings in tbe former action and j’udgment was rendered thereon. In this situation we are of opinion, and so bold, tbat bis recourse, if any, is by motion in tbe original cause rather than by independent action. Having bad a day in court, with opportunity to present bis contention, and having failed to perfect bis appeal from an adverse j'udgment, a new action upon tbe same ground to restrain tbe execution of tbe judgment would not lie. There is neither allegation nor contention tbat tbe execution is void. His remedy, if any, is by motion in tbe original action to recall the execution, modify the judgment, or restrain the sheriff. *Davis v. Land Bank, ante,*145; *533*Crowder v. Stiers,*215 N. C., 123, 1 S. E. (2d), 353; *Finance Co. v. Trust Co.,*213 N. C., 369, 196 S. E., 340; *Kistler v. Weaver,*135 N. C., 388, 47 S. E., 478; *Baxter v. Baxter, 11*N. C., 118; McIntosh Prac. & Proc., secs. 735 and 861.

In *Finance Co. v. Trust Co., supra,*where an independent action was instituted to restrain an execution sale, it was said by *Barnhill, J.,*speaking for the Court: “The plaintiffs cannot maintain this action as an independent proceeding for two reasons: (1) this is an injunctive proceeding and the plaintiffs have an adequate remedy at law by motion in the cause, and (2) the relief sought must be obtained by motion in the original cause and not by independent action.” It was also said in that opinion: “An action is not ended by the rendition of a judgment but is still pending until the judgment is satisfied.”

The complaint in this action may not be treated as a motion in the cause, as is sometimes done, for the reason that this action is solely against the sheriff as such, and the plaintiff in the original action is not a party.

The exception to the ruling of the court below in dissolving the temporary restraining order and sustaining defendant’s demurrer cannot be sustained. However, the execution will be stayed until the plaintiff shall have had opportunity to enter his motion in the original cause if he so desires.

The judgment below is

Affirmed.

Seawell, J.,

dissenting: The order of sale in this case attempts to confer on the sheriff, a ministerial officer, the judicial function, since it makes him the judge of what property was used “by Bill Humphrey” in conducting the nuisance complained of. Such a power is not only dangerous to the public, but its delegation has been universally condemned as unconstitutional. 16 C. J., 505; *Strickland v. Cox,*102 N. C., 411, 9 S. E., 414. It makes no difference that it is in the words of the statute. That is a charter for the court and jury, not the sheriff.

Even the Legislature cannot confer on a ministerial executive officer such incompatible powers. Constitution of North Carolina, Article I, section 8; 11 Am. Jur., p. 909, section 207.

The order, or execution, has no more validity than an execution in an action of *detinue,*which requires the sheriff to take from the defendant and deliver to the plaintiff “the property which belongs to him.” The order directed to the sheriff is void and the proposed action thereunder is utterly without authority; *Barham v. Perry,*205 N. C., 428, 171 S. E., 614; and subject to restraint by injunction. *Daniels v. Homer,*139 N. C., 219. 248 S. E.. 237.

*534In the main opinion it is said that the plaintiff has neither alleged nor contended that the execution is void. In this case the order of execution is embodied in the judgment, and that part which relates to the sale of the property by the sheriff is the part around which the controversy hinges, and the objection, as stated in plaintiff’s brief, is that the order leaves to the personal judgment of the sheriff “what might or might not have been used in the way of movable property in the conduct of the nuisance.”

No doubt the defendant, in the vernacular, “got what was coming to him.” But the precedent might be used to defeat justice in a more meritorious cause.

Stacy, C. J., and WiNBORNE, J., concur in dissent.