#### J. N. YEATES v. R. F. FORREST.

(Filed 14 September, 1910.)

Trespass — Injunction—Supreme Court Opinion — Surveys—Orders— Procedure.

In an action of trespass involving a dividing line between plaintiff’s and defendant’s land, and asking for a restraining order, the Supreme Court having rendered and certified down its opinion in plaintiff’s favor, it is not error for the subsequent trial judge to order the dividing line to be marked, and enjoining trespass upon plaintiff’s land; but the cause should be retained until the court has received the surveyor’s report, to afford opportunity for exceptions to be made to the line as actually marked.

Civil actioN beard before O. H. Allen, J., at May Term, 1910, of Beaufort. From tbe judgment rendered by bis Honor tbe defendant appealed.

Ward & Grimes for plaintiff.

Small, McLean & McMullan for defendant.

Manning, J.

Tbis case is reported in 152 N. C. Tbe judgment of tbis Court having been certified to the Superior Court of Beaufort County, Judge Allen, at May Term, 1910, rendered, on motion of plaintiff’s attorney, the following judgment: “Tbis cause coming on for bearing upon the return of the certificate of the Supreme Court, affirming the former judgment in said cause, it is ordered and adjudged that the former judgment of tbis Court be declared the final judgment in tbis cause, and that the surveyor of the Court run and mark a line on the land in accordance with the judgment heretofore rendered, and the defendant be and be is hereby enjoined from trespassing across said line, and that tbis cause go off the docket, at the cost of the *18defendant.” The judgment from which the former appeal in this case was taken by the defendant clearly and distinctly defined the dividing line between plaintiff’s and defendant’s lands as fixed by the verdict of the jury. This judgment was affirmed by the Court. We can, therefore, see no objection to that part of his Honor’s judgment directing the surveyor appointed by the Court to run and mark a line on the land in accordance with the former judgment. This line had been defined on a plat and in the judgment, and we do not see that any right of the defendant could be invaded by having it marked on the land itself by either artificial or natural objects. The verdict .and judgment conclusively determined not only plaintiff’s title, but his right of possession. The plaintiff, as a part of the relief prayed by him in his original complaint, had asked for a restraining order, and the judgment having conclusively determined that defendant was trespassing upon land belonging to plaintiff, we can see no objection to that part of his Honor’s judgment enjoining the defendant from a continuance or resumption of his acts of trespass. The power to protect its judgment from violation by the defendant was within the power of the Court. No right of the defendant was invaded and this was in aid of plaintiff’s rights.

But that part of the judgment which directed the case to be discontinued from the docket before the surveyor had made his report that he had run and marked the exact line of division, we think is properly subject to defendant’s objection. The reason is clear to us — the surveyor might not run and mark the proper line, and the action should have been retained to receive the surveyor’s report and for an opportunity to either party to file exceptions to the running and marking the line as not the exact and actual line of division. In view of this possible disagreement, the case should not have been finally disposed of, but should have been retained. We do not think any action should be ordered discontinued from the docket of the Court until every act commanded to be done has been performed and its performance passed upon by the Court. In directing this action to be discontinued from the docket before the report of the surveyor was received and passed upon, there is error. The defendant-ap*19pellant is entitled to recover tbe costs of tbe appeal. We notice tbe appellant bas bad printed tbe entire record in tbe former appeal. We tbink tbis clearly unnecessary and tbe costs óf this part of tbe trañscript and of its printing must be taxed against tbe appellant.

Error.