Edmonds v. Hall

• Decision Date: 17 September 1952
• Docket Number: No. 96,96
• Citation: 236 N.C. 153,72 S.E.2d 221
• Parties: EDMONDS et ux. v. HALL et ux.
• Court: North Carolina Supreme Court

Page 221

72 S.E.2d 221

236 N.C. 153

EDMONDS et ux. v. HALL et ux.

No. 96

Supreme Court of North Carolina.

Sept. 17, 1952

Carl R. Stuart, Marshall, for defendants, appellants.

Calvin R. Edney, Marshall, and Geo. M. Pritchard, Asheville, for plaintiffs, appellees.

JOHNSON, Justice.

The defendants' only exception is to the order continuing the temporary restraining order until the final determination of the cartway proceeding. Therefore the single question presented by this appeal is whether the facts found by the court below are sufficient to sustain the order. Sprinkle v. Reidsville, 235 N.C. 140, 69 S.E.2d 179.

The rule that prevailed under the old equity practice is stated thus by Pearson, J., in Parker v. Grammer, 62 N.C. 28: 'Where there is reason to apprehend that the subject of a controversy in equity will be destroyed, or removed, or otherwise disposed of by the defendant, pending the suit, so that the complainant may lose the fruit of his recovery, or be hindered and delayed in obtaining it, the court, in aid of the primary equity, will secure the fund by the writ of sequestration, or the writs of sequestration and injunction, until the main equity is adjudicated at the hearing of the cause.'

Substantially the same rule applies under the present practice, but, by virtue of the Code of Civil Procedure, adopted in 1868, it is extended to cases in which legal, as well as equitable, relief is sought and it is necessary to preserve the property until the right thereto can be adjudicated.

Our present statute, which stems from the original Code, provides that 'When, during the litigation, it appears by affidavit that a party thereto is doing, or threatens or is about to do, or is procuring or suffering, some act to be done in violation of the rights of another party to the litigation respecting the subject of the action, and tending to render the judgment ineffectual', an order may issue to restrain such act until the rights of the parties can be determined. G.S. § 1-485, subd. 2.

And a court of equity, or a court in the exercise of its equity powers, may use the writ of injunction as a remedy subsidiary to and in aid of another action or special proceeding. Wilson v. Alleghany Co., 124 N.C. 7, 32 S.E.326, and cases there cited; 43 C.J.S., Injunctions, § 13; 28 Am. Jur., Injunctions, § 14. See also 43 C.J.S., Injunctions, § 19. However, in such cases, in order to justify continuing the writ until the final hearing, ordinarily it must be made to appear (1) that there is probable cause the plaintiff will be able to establish the asserted right, and (2) that there is a reasonable apprehension of irreparable loss unless the temporary order of injunction remains in force, or that in the opinion of the court such injunctive relief appears to be reasonably necessary to protect the plaintiff's rights until the controversy can be determined. Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80. See also McIntosh, N. C. P. & P., Sec. 873.

In the present case the record contains a recital of specific facts found by the Judge upon which the challenged decree is based. This being so, the plaintiffs may not call to their aid the rule that where no request is made for...