Harrison v. Bryan, 148 N.C. 315 (1908)

Sept. 16, 1908 · Supreme Court of North Carolina

148 N.C. 315

MARY H. HARRISON v. J. A. BRYAN and the CITY OF NEW BERN et al.

(Filed 16 September, 1908.)

Injunction — Cause of Action Removed — Appeal Dismissed Without Prejudice.

When it lias been made to appear tbat the action is for in-junctive relief only, and the cause lias been removed, appeal will be dismissed without prejudice to the rights of plaintiff to sue for damages, if so desired.

ActioN to enjoin the cutting and removing of a tree, heard before Guión, J., at Fall Term, 1908, of OeaveN.

Plaintiff appealed.

D. E. Hendren and G. V. Cooper for plaintiff.

17. 17. Clark and 17. D. Mclver for defendants.

Pee. CueiaM :

It appearing to the Court, upon affidavit of defendant, which is not contradicted, that since the dissolution of the restraining order in this case by his Honor. Judge Guión, and pending this appeal, the tree described in the pleading has been cut down by the city authorities of New Bern, and that there is nothing now to enjoin, and this being an action for injunctive relief only, it is ordered that the action be. dismissed without prejudice to any rights the plaintiff may have to commence another action for damages, -is so desired.

Action Dismissed.