#### J. A. CALHOUN v. P. T. STIERS.

(Filed 1 March, 1939.)

Appeal by defendant from Clement, J., at Chambers, 9 November, 1938, of Rockingham.

Reversed.

Motion in the cause to recall execution against the person of defendant. It was alleged that the execution was invalid as not having been issued pursuant to an affirmative finding by the jury upon a separate and distinct issue sufficient to justify an execution against the *127person. From a judgment dissolving the restraining order and directing the sheriff to proceed with execution against his person, the defendant appealed.

Glidewell & Glidewell and Sharp & Sharp for plaintiff.

Karl R. Massey for defendant.

Devin, J.

The question presented by this appeal is similar to that decided at this term in the case of Crowder v. Stiers, ante, 123. Upon authority of that case we hold there was error in dissolving the temporary restraining order, and that the defendant was entitled to have the execution against his person recalled. The judgment of the court below is

Eeversed.