Hight v. Taylor, 188 N.C. 814 (1924)

Sept. 17, 1924 · Supreme Court of North Carolina

188 N.C. 814

J. W. HIGHT v. W. J. TAYLOR et al.

(Filed 17 September, 1924.)

Appeal by plaintiff from Barnhill, J., at chambers in Rocky Mount, 26 July, 1924, from MaetiN.

Civil action to restrain the defendants from proceeding under execution and supplemental proceedings on judgment rendered by default against plaintiff and in favor of defendants.

From a judgment dissolving the temporary restraining order, the plaintiff appeals.

Cfiichen' & Critcher for plaintiff.

Dunning, Moore <& Horton for defendants.

Peb OubiaM.

Embodied in the judgment rendered herein are the following findings of facts:

“1. The defendants in this cause in April, 1924, instituted an action against the plaintiff in this cause in the Recorder’s Court of Martin County, and the plaintiff herein having failed to answer, judgment was rendered against the plaintiff here for $648.

“2. That the plaintiff in this cause has not appeared and moved to set aside said judgment for excusable neglect or any other cause to the end that he might file answer and set up his counterclaim, although one year has not elapsed since the rendition of said judgment. This finding is by consent.

“3. That the defendant has filed answer in this cause denying every material allegation in plaintiff’s complaint.

“4. This is an independent action instituted by the plaintiff against the defendant upon a cause of- action that could have been set up as a counterclaim in the suit instituted by the defendant against the plaintiff in the Recorder’s Court of Martin County.”

Upon these, the facts chiefly pertinent, the court being of opinion that the plaintiff was not entitled to injunctive relief, dissolved the temporary restraining order previously granted in the cause. In this there was no error. Plaintiff has not made out a case calling for' injunctive relief.

Affirmed.