Taylor v. Boone, 172 N.C. 93 (1916)

Sept. 27, 1916 · Supreme Court of North Carolina

172 N.C. 93

G. T. TAYLOR and T. W. MOORE v. J. W. BOONE et al.

(Filed 27 September, 1916.)

1. Injunction — Service—Affidavit—Statutes.

Our statute requires that “a copy of the affidavit be served with the injunction,” which must be done unless the judge allows such service to be made thereafter (Revisal, sec. 810), or the injunction will be dissolved.

2. Same — Agreement to Continue — Waiver.

The requirements of the statute, Revisal, sec. 810, are not waived by an agreement made between the parties out of court, on the return day of a temporary restraining order, that the hearing may be had at a later day; and when such have not been observed by the plaintiff, the defendant may enter a special appearance and successfully move to dissolve the restraining order on the ground that it has not been served according to law.

Appeal by plaintiff from order of Stacy, J., dissolving a restraining order, 24 April, 1916, from íIeRteobd.

This is an. action to recover damages for trespass on land, and during the pendency of the action the plaintiff applied for and obtained a temporary order restraining the defendants from further trespassing upon the said' lands.

No copy of the affidavit or complaint was served with the restraining order.

On the return day of the order, and after the time set for the hearing, counsel for plaintiff and defendant agreed that the hearing might be had at a later day, and at the time agreed on both parties were represented and counsel for the defendants entered a special appearance and moved to dissolve the restraining order upon the ground that it had not been served according to law.

The motion was granted, and the plaintiffs excepted and appealed.

Boswell 0. Bridget for plaintiffs.

John M. Vann and Gowper & Boone for defendant.

AlleN, J.

Tbe statute (Rev., sec. 810) requires tbat “a copy of tbe affidavit must be served witb tbe injunction,” and tbis must be done unless tbe judge allows service of tbe affidavit to be made thereafter.

Plaintiffs, however, contend tbat tbis requirement of tbe statute has been waived by the agreement between counsel, made out of court, tbat tbe bearing should be bad at another time. Tbis position is met and decided against tbe plaintiffs in Woodard v. Milling Co., 142 N. C., 100. In tbat case tbe defendant moved to dismiss tbe action for irregularities in tbe proceeding, and tbe plaintiff replied tbat irregularities.bad been -waived by an agreement between tbe attorneys of the plaintiff and defendant, tbat “tbe matters should be continued from 23 April, 1914, and come up for bearing on 13 May, 1914,” and tbe Superior Court found tbat tbis agreement was made. Tbis Court said: “Tbis agreement was made, doubtless, for mutual convenience, and we see nothing in it to indicate tbat counsel for defendant intended to enter a general appearance or to waive any right which could have been exercised bad be appeared on 23 April,” and held tbat there was no waiver.,

We must, therefore, affirm tbe ruling of bis Honor.

Affirmed.