Wallace v. Town of North Wilkesboro, 151 N.C. 614 (1910)

Jan. 8, 1910 · Supreme Court of North Carolina

151 N.C. 614

J. V. WALLACE v. TOWN OF NORTH WILKESBORO.

(Filed 8 January, 1910.)

1. Injunction, Temporary — Order Dismissed — Appeal and Error— Acts Accomplished — Abstract Propositions.

An appeal from the dissolution of a restraining order will not be considered, when it appears that acts sought to be restrained have been committed, the appeal thus presenting merely an abstract proposition.

2. Appeal, and Error — Interlocutory Orders — Appeal Dismissed — Procedure.

The dismissal of an appeal from an interlocutory order dissolving an injunction does not necessarily dismiss the action, but leaves it pending in the Superior Court.

Appeal by plaintiff from Councill, J., refusing to grant an injunction, beard at chambers in Hickory, 17 July, 1909; from Wilkes.

Benbow & Caviness for plaintiff.

Finley & Ilendren for defendant.

BROWN, J.

.This is a civil cause, duly instituted by the plaintiff against tbe defendant, town of North Wilkesboro. A temporary restraining order was issued in said cause by W. R. Allen, Judge, restraining the town of North Wilkesboro from purchasing the “Hackett Mill property,” to be used for municipal purposes, in the way of installing a water system and supplying the town with drinking water.

The temporary restraining order was heard by W. B. Councill, resident judge of the Thirteenth Judicial District, at chambers, in Hickory, N. C., on 17 July, 1909, and, after being heard, was dissolved. From such judgment the plaintiff appealed.

It was admitted upon the argument that as soon as the judge below dissolved the restraining order the defendant commissioners purchased the property, and that the transaction has been completed by the execution of a deed.

It is further called to the attention of this Court that, since the said purchase has been made and the deed executed, the General Assembly of 1909 has ratified and’ fully confirmed the purchase. Chapter 112, sec. 21, p. 289, Private Laws 1909.

As this case is not before us upon its merits or upon any issues raised by the pleadings, but only upon an appeal from an interlocutory order, tbe necessity for tbe bearing of tbis appeal bas been obviated, since tbe defendant bas accomplished, pending tbis appeal, tbe purchase of tbe Haekett property and the utilization of tbe same for tbe purposes for which it was purchased, and tbe purchase bas been ratified by tbe lawmaking power.

Tbe Court will not pass on a mere abstract proposition. Pickler v. Board of Education, 149 N. C., p. 223. In this case, Clark, G. J., says: “Pending this appeal, the new schoolhouse bas doubtless been built. If that appeared, we would not decide.an abstract question.” See, also, per curiam, order in a similar case of Harrison v. New Bern, August Term, 1908.

Tbe dismissal of tbis appeal from an interlocutory order does not dismiss the case. It is still pending in tbe Superior Court of Wilkes County, and tbe parties may proceed as they may be advised.

Appeal dismissed.