Boyd v. Trexler

• Decision Date: 25 October 1909
• Parties: BOYD v. TREXLER et al.
• Court: South Carolina Supreme Court

65 S.E. 936

84 S.C. 51

BOYD v. TREXLER et al.

Supreme Court of South Carolina

October 25, 1909

Appeal from Common Pleas Circuit Court of Horry County; Charles G Dantzler, Judge.

Action by Simon Boyd against Harry C. Trexler and another. From an order dismissing a temporary injunction granted pendente lite, plaintiff appeals. Reversed, and order granting the injunction continued.

C. P Quattlebaum and H. H. Woodward, for appellant. Robt. B Scarborough, for respondents.

JONES C.J.

This action was commenced September 18, 1908, for the cancellation and surrender of a deed of a tract of land in Horry county on the grounds (1) of insanity of the grantor; and (2) a fraud, imposition, undue influence used, and overreaching the grantor by taking advantage of his mental and physical weakness in obtaining the said deed, and for an injunction to restrain defendant from acting under said deed and from entry upon the lands described therein, and from cutting and removing timber therefrom. On October 1, 1908, upon the verified complaint and affidavit of plaintiff, Judge Dantzler granted a temporary injunction, with leave to defendant to apply for dissolution thereof. Upon the motion made upon notice before him at his chambers at Florence, S. C., on November 6, 1908, Judge Dantzler granted an order dissolving the temporary injunction upon the defendant Harry C. Trexler entering into bond to plaintiff in the usual form within 20 days in the sum of $8,000 with sureties to be approved by the clerk. From this order plaintiff appeals.

In the case of Marion Lumber Company v. Tilghman Lumber Company, 75 S.C. 221, 55 S.E. 337, the court declared: "When the sole purpose of an action is for an injunction and a temporary injunction is essential to the assertion and preservation of a legal right, if established as alleged in the complaint, it would be error to refuse or set aside a temporary injunction. Alderman v. Wilson, 69 S.C. 159, 48 S.E. 85, and cases cited therein. This, however, does not mean that a right to a temporary injunction pendente lite follows automatically if the complaint states a cause of action for injunction. The court should consider the showing made in opposition thereto, and must determine in view of all circumstances, subject to review by this court, whether the injunction is reasonably essential to protect the legal right of plaintiff pending the litigation, as was done in Northrop v....