Wentz v. Piedmont Land Co., 193 N.C. 32 (1927)

Jan. 12, 1927 · Supreme Court of North Carolina

193 N.C. 32

JOHN R. WENTZ v. PIEDMONT LAND COMPANY, J. O. HURLEY, P. C. WHITLOCK, Trustee, ALFRED W. BROWN, and JOHN M. WILSON and J. M. PORTER, Partners, Trading Under ti-ie Firm Name of WILSON & PORTER.

(Filed 12 January, 1927.)

1. Injunction — Restraining Order — Continuance to Hearing.

Where the plaintiff in injunction makes it to appear that his remedy at law is’ inadequate and that he may probably succeed in establishing that he would otherwise sustain irreparable loss, and the rights of all parties preserved, the restraining order theretofore issued will be continued to the hearing of the case.

2. Appeal and Error — Injunction—Evidence—Review.

Upon appeal the Supreme Court may review the evidence upon which the Superior Court judge has acted on the hearing before him, and con- • tinued the restraining order.

Appeal by defendants from Schenck, J., Superior Court of ALecklenburg County, continuing to tbe hearing a temporary injunction, beard at Chambers, Gastonia, N. 0., on 27 August, 1926. Affirmed.

Tbe order is as follows: “Tbis cause by agreement of counsel coming on to be beard before me tbis day on tbe "order of bis Honor, R. A. Nunn, judge, to show cause why tbe injunction sued for be not continued to tbe bearing (tbe same having been continued from time to time by c'onsent of counsel), and being beard upon tbe pleadings, exhibits and affidavits filed therein, after bearing of argument by counsel, and tbe court being of tbe opinion and finding as a fact from tbe pleadings, exhibits and affidavits that there is probable cause that tbe plaintiff will be able to make out bis ease on final bearing, and it appearing from tbe pleadings that serious questions of facts are raised to be passed on by a jury at tbe final bearing: Now, therefore, it is ordered and adjudged that tbe injunction heretofore granted be, and tbe same is continued in full force and effect to tbe bearing, that is to say, tbe defendant, P. O. Whitlock, trustee, is forbidden and restrained from consummating or taking any further action to consummate tbe foreclosure or sale under deed of trust of tbe tract of land described in paragraph four of tbe complaint herein, and also tbe contract attached to tbe complaint and marked 'Exhibit A’; that tbe defendants J. C. Hurley and A. W. Brown, and each of them are forbidden and restrained from selling, assigning, transferring or disposing of in any manner whatsoever, that certain promissory note dated 1 May, 1924, executed by W. O. Rankin, Howard L. Hopkins and T. Roach Garrison, p'ayable to George Stephens on tbe ........ day of .............. after date in tbe sum of seventy-five hundred dollars ($7,500.00), and endorsed by said George Stephens and now held by defendant, J. C. Hurley, or tbe defendant, Alfred W. Brown, as agent or trustee, for said J. O. Hurley, or both of them, and secured by a deed of trust described in paragraph two of tbe complaint, recorded in tbe office of the register of deeds for Mecklenburg County, in Book 570, page 220. Tbis order shall become effective upon tbe plaintiff filing with tbe clerk of tbe Superior Court of Mecklenburg County a good and sufficient bond in tbe sum of five thousand dollars ($5,000.00), conditioned upon bis saving tbe defendants harmless from any loss or damage occasioned by tbe granting of tbis order if it shall hereafter be determined that tbe same was improvidently granted.” Tbe undertaking of John R. Wentz was duly given, in accordance with tbe order of Schenck, J.

The defendants’ only assignment of error is “that the court erred in signing the order continuing the restraining order to the hearing.”

J. Laurence Jones and J. L. DeLaney for plaintiff.

Whitlock, Dockery & Shaw for defendants J. C. Hurley and P. G. Whitlock, trustee.

Carswell & Ervin for defendant Piedmont Land Go.

Clarkson, J.

The rights of the parties to the controversy are complicated. Certain principles of law are applicable when the facts are ascertained. On the record, as to material facts, there is serious conflict. In injunction proceedings this Court has the power to find and review the findings of fact on appeal, but the burden is on the appellant to assign and show error, and there is a presumption that the judgment and proceedings in the court below are correct.

Plaintiff hás given bond, in accordance with the order continuing the injunction to the hearing, “conditioned upon his saving the defeirdants harmless from any loss or damage,” etc.

From a careful study of the entire record, we can find no reversible error in the order of the court below.

In Seip v. Wright, 173 N. C., at p. 15, it is held: “Where it will not harm the defendant to continue the injunction, and may cause great injury to the plaintiff, if it is dissolved, the court generally will restrain the party until the hearing. McCorkle v. Brem, 76 N. C., 407; where serious questions were raised. Harrington v. Rawls, 131 N. C., 40; or where reasonably necessary to protect plaintiff’s rights, Heilig v. Stokes, 63 N. C., 612. ... If the plaintiff has shown probable cause or it can reasonably be seen that he will be able to make out his case at the final hearing, the injunction will be continued is another way of stating the rule,” and cases cited. Cab Co. v. Creasman, 185 N. C., p. 556; Johnson v. Jones, 186 N. C., p. 235; Plott v. Comrs., 187 N. C., p. 125; Brinkley v. Norman, 190 N. C., p. 851.

In Hurwitz v. Sand Co., 189 N. C., p. 6, it is said: “A court of equity looks always towards doing justice to the parties and in good conscience protecting their rights until the final adjudication of the controversy through the .courts. . . . The courts of equity are gradually adjusting themselves to modern conditions and look to, what in good conscience is for the best interest of the litigants, without resorting to any hard or fast rule.”

For the reasons given, the order of the court below is

Affirmed.