#### ERNIE R. MASSENGILL and D. H. WEBB v. ALICE R. LEE.

(Filed 8 October, 1947.)

1. Injunctions § 4f—

Where an action to try title is pending, a judge of the Superior Court has judicial power to issue an order restraining a party to the action from further action or proceeding to obtain possession against a tenant of the adverse party. G. S., 1-493.

2. Sheriffs § 6a—

Execution of a judgment against defendant in summary ejectment to remove her from the land was issued and delivered to the sheriff. The sheriff failed to serve the execution because of an intervening order restraining the plaintiff from further prosecuting the summary ejectment, issued in a prior pending action to try title. *Held,:*Motion to amerce the sheriff for failure to serve the execution was properly denied, since the sheriff had shown sufficient cause for failing to serve the execution. G. S., 162-14.

3. Injunctions § 12—

Where a temporary restraining order is issued by a judge having judicial power to issue the order, the remedy, if the order is erroneous, is by motion to dissolve or by appeal, and not by defiance.

Appeal by plaintiff Massengill from *Harris, J.,*at April Term, 1947, of JohNSTON.

Affirmed.

Tbis was a motion to amerce tbe Sheriff of Jobnston County for failure to serve an execution issued from tbe court of a Justice of tbe Peace. From denial of tbe motion by tbe Justice of tbe Peace, plaintiff Massengill appealed to tbe Superior Court. In tbe Superior Court tbe Presiding Judge, on tbe facts found, denied tbe motion for judgment for tbe prescribed penalty, and tbe plaintiff Massengill appealed to tbe Supreme Court.

*Leon*6?. *Stevens for plaintiff Massengill.*

*HooTcs ■<£ Mitchiner and Wellons, Martin & Wellons for G. L. Denning, Sheriff.*

*36DbviN, J.

Tbe findings of fact made by Judge Harris were based upon tbe record and tbe evidence offered, and we think are sufficient to support tbe order denying appellant’s motion for judgment absolute against tbe Sheriff for tbe penalty prescribed by G-. S., 162-14.

Tbe pertinent facts were these: 10 December, 1945, tbe plaintiffs instituted summary ejectment proceedings in tbe court of a justice of tbe peace against defendant Alice R. Lee to remove her from a 20-acre tract of land. Judgment was rendered in favor of plaintiff Massengill for tbe possession of tbe land 18 December, 1945. Alice R. Lee gave notice of appeal but was unable to give tbe required $500 bond. At this time there was pending in tbe Superior Court of Johnston County a civil action entitled “Joseph R. Moore and others, *vs.*Ernie R. Massengill and D. H. Webb and others.” This was an action to try tbe title to tbe described 20-acre tract of land upon allegation of title thereto in Moore and want of any title in Massengill and Webb. 18 December, 1945, on affidavit of Moore that defendant Alice R. Lee was in possession of tbe land with permission of Moore, and that Massengill and Webb were wrongfully attempting to gain possession of tbe land before tbe rights of tbe parties could be determined, Judge Harris issued a temporary restraining order restraining Ernie R. Massengill and D. H. Webb and their attorneys and agents from any other action or proceeding in attempting to take possession of said land or remove any person therefrom until the further order of the court. This restraining order was delivered to tbe Sheriff of Johnston County and by him personally served on tbe plaintiff Massengill, 21 December, 1945. 22 December, 1945, tbe plaintiff Massengill applied to tbe Justice of tbe Peace for execution against defendant Alice R. Lee to remove her from tbe land. This execution was issued and delivered to tbe Sheriff, who, knowing of tbe issuance of tbe restraining order, sought tbe advice of Judge Harris and was advised by him that service of tbe execution would be in violation of tbe restraining order. Tbe Sheriff thereupon made return of tbe execution as not served on account of tbe restraining order of Judge Harris. Subsequently Alice R. Lee moved off tbe land and tbe restraining order was dissolved without prejudice. Nearly a year later, on 6 December, 1946, plaintiff Massengill made motion in tbe Justice’s Court for amercement of tbe Sheriff for failure to serve tbe execution. This motion was denied ' by tbe Justice and on movent’s appeal therefrom to tbe Superior Court, tbe Judge Presiding, Judge Harris, found tbe facts substantially as above set out and adjudged that tbe motion for judgment absolute against tbe Sheriff for tbe penalty prescribed by tbe statute be denied.

Plaintiff appellant based bis motion for judgment against tbe Sheriff upon tbe view that Judge Harris was not bolding court in Johnston County at tbe time of issuing tbe restraining order, and that tbe restrain*37ing order issued by him was void as attempting to restrain the action of a different court in a different action, citing *Childs v. Martin,*69 N. C., 126. Eut the restraining order here was issued from the Superior Court by a judge thereof against Massengill and Webb who were parties to the .action in which it was issued, and in respect to the subject matter of that action, to preserve the *status quo.*Whether the restraining order was properly issued or not, it could not be ignored by plaintiff Massengill. Judge Harris, on proper showing and in accordance with the statutes, had the judicial power to issue the restraining order (G. S., 1-493; *Hamilton v. Icard,*112 N. C., 589, 17 S. E., 519), but if the order was erroneously issued, the remedy was by motion to dissolve, or appeal, or by action on the injunction bond, and not by open defiance. *Nobles v. Roberson,*212 N. C., 334, 193 S. E., 420. The Sheriff, having knowledge of the terms of the order, had “sufficient cause” (G. S., 162-14), as held by the court below, to decline to serve an execution procured by the plaintiff in violation of the order restraining him from doing what he was thereby attempting to do.

The ruling of Judge Harris in denying the motion to amerce the Sheriff must be

Affirmed.