Sawyer v. Pasquotank County, 174 N.C. 786 (1917)

Sept. 12, 1917 · Supreme Court of North Carolina

174 N.C. 786

L. R. SAWYER et al. v. PASQUOTANK COUNTY.

(Filed 12 September, 1917.)

1. Injunction — Dissolution—Damages—Judgment—Contingencies.

Upon dissolution of a restraining order, liability of plaintiff and bis sureties on tbe injunction bond cannot be determined in advance of any loss or damage proven or sustained, and an adjudication thereof in certain contingencies is reversible error.

2. Appeal and Error — Trials—Issues.

On tbis appeal it is beld that tbe issue submitted covers every phase of tbe controversy, and that it was answered by tbe jury under a correct charge of tbe court upon a trial without error.

ActioN to restrain the levy and collection of a tax in a special school-tax district in Pasquotank: County, upon the ground that a majority of the votes cast at the election was not in favor of the proposition.

A restraining order was issued, and at the trial a verdict was returned by the jury in favor of the defendants.

Judgment was rendered upon the verdict, dissolving the restraining order and directing the collection of the tax, and also adjudging the liability of the plaintiffs and their surety on the injunction bond in certain contingencies.

The plaintiffs excepted and appealed.

Ehringhaus & Small and Aydlett & Simpson for plaintiffs.

Ward & Thompson for defendants.

Per Curiam.

We have considered the exceptions of the plaintiffs to the refusal to submit certain issues, and to the charge, and find them without merit. The issue submitted covers every phase of the controversy, and the charge is free from objection.

The exception to the judgment must be sustained, as the liability of the plaintiffs and their surety on the injunction bond cannot be determined in advance of any loss or damage, proven or sustained. The defendant will be taxed with the costs of this Court. .

Modified and affirmed.