Ragland v. Kellogg, 249 N.C. 646 (1959)

Feb. 25, 1959 · Supreme Court of North Carolina

249 N.C. 646

CARL LEE RAGLAND and wife, BEULAH P. RAGLAND, v. MARTIN KELLOGG, JR., Trustee, and JAMES E. GARRETT and wife, MYRTLE B. GARRETT.

(Filed 25 February, 1959.)

Appeal by defendants from order of Morris, J., Resident Judge of the First Judicial District, heard August 23, 1958, by consent, in Chambers at Currituck, North Carolina. From DaRE.

Civil action to restrain foreclosure of deed of trust constituting lien on plaintiff’s land.

On June 9, 1958, Martin Kellogg, Trustee, advertised a foreclosure sale on account of plaintiffs’ failure to pay 1957 taxes. Plaintiffs paid the 1957 taxes on June 16, 1958, and instituted this action on July 2, 1958. A temporary restraining order was issued July 3, 1958; and the question before Judge Morris was whether the temporary restraining order should be continued in effect until final hearing on the merits.

Upon .¡the amended complaint, exhibits and .affidavits, Judge Morris found as facts “that there is probable cause that the plaintiffs will Ibe able to make out their case on final hearing and . . . that serious questions of fact are raised to be passed on by a jury at the final hearing.” Thereupon, by his order of August 23, 1958, Judge Morris continued in full force and effect the said temporary order and restrained further foreclosure proceedings until the final hearing and determination of the cause.

Defendants excepted and appealed.

McCown & McCown for plaintiffs, appellees.

Frank B. Ay cock, Jr., for defendants, appellants.

Per Curiam.

The only question now presented is whether the evidence was sufficient to support Judge Morris’ findings of fact and interlocutory order. The record requires an affirmative answer.

It is noted that plaintiffs, as required by Judge Morris, filed a $1,000.00 bond, affording protection to defendants in the event it is determined on final hearing that the restraining order pendente lite was improvidently entered and that defendants suffered damages on account thereof.

Whether defendants’ demurrer to amended complaint was properly overruled is not presented. No petition for certiorari was filed. Rule 4(a), Rules of Practice in the Supreme Court, 242 N.C. 766. Even so, since plaintiffs’ right to the restraining order pendente lite is based upon the facts alleged in their amended complaint, it may be implied that this 'Court is of opinion that defendants’ said demurrer was properly overruled.

Affirmed.