Epps v. Bryant, 16447

Decision Date27 December 1950
Docket NumberNo. 16447,16447
Citation218 S.C. 359,62 S.E.2d 832
CourtSouth Carolina Supreme Court
PartiesEPPS v. BRYANT et al.

DuRant & DuRant, Manning, for appellants.

James Hugh McFaddin, Manning, for respondent.

TAYLOR, Justice.

Upon a summons and verified complaint of the plaintiff, the resident Circuit Judge issued at Chambers on March 4, 1950, an order, which the appellants contend is a temporary injunction, and respondent contends is a temporary restraining order. No bond being required of the plaintiff, defendants, after due notice, moved before the next presiding judge of the circuit to set aside the said order upon several grounds, one of which was that no bond or undertaking was required in violation of Section 570 of the statutes of this state. This resulted in an order dated March 30, 1950, providing that the first order should remain in force provided that the plaintiff file an undertaking. From this last order, appellants now come to this Court, contending that there was error in refusing to set aside the first order upon the ground that no bond or undertaking was required of the plaintiff in accordance with Section 570, Code of Laws of South Carolina 1942.

'Although sometimes used synonymously, the terms 'temporary injunction' and 'restraining order' are properly distinguishable'. 28 Am.Jur. 206. The two orders are somewhat different in character, although the words describing them are not so important as the substance thereof. An examination of the Code Sections under which temporary injunctions and restraining orders may be issued, in cases of the kind now before us, will very clearly show the distinction between the two types of orders.

Subdivision (2) of Section 566 is as follows: 'When, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done, in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.'

Section 567 relates to the granting of a temporary injunction, from which we quote the following: 'The injunction may be granted at the time of commencing the action, or at any time afterwards, before judment, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or of any other person that sufficient grounds exist therefor.'

Section 570 provides as follows with reference to security upon an injunction: 'When no provision is made by statute as to security upon an injunction, the court or judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoin(ed) such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto.'

The three sections from which the above excerpts were taken relate to temporary injunctions. But Section 571 relates solely to restraining orders, and the following is a copy of the entire section: 'If the court or judge deems it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made, requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the meantime, be restrained.'

The complaint herein, dated March 3, 1950, alleges that the plaintiff is the owner in fee and in exclusive possession of a certain tract of land in Clarendon County, and that the defendants, their agents and servants, have entered upon this land and committed wilful and malicious trespasses thereon of a continuous character, interfering with the plaintiff in preparing to cultivate his crops on the premises. The prayer of the complaint is for a temporary order restraining the defendants 'during the pendency of this action' from trespassing on the premises; and for a permanent injunction as well as damages; and there is a general prayer for such other and further relief as may be just and proper.

On March 4, 1950, Hon. J. Frank Eatmon, Judge of the Third Circuit, handed down the order hereinbefore referred to, reciting that the case came before him upon the sworn complaint, and that it appeared to his satisfaction that the plaintiff was entitled to the temporary relief asked for in paragraph one of the prayer of the complaint, and hence such relief was granted, and the defendants, their agents, servants, etc., were specifically restrained and enjoined 'during the pendency of this action or until the further order of this court' from entering upon or trespassing upon the premises.

This order also contains the following paragraph: 'Ordered that copies of any moving papers herein be served upon plaintiff's attorney at least ten (10) days before any date set for hearing.'

It will be noted from the foregoing recital that the order is a straight out order of temporary injunction, and is not in any sense a rule to show cause. The paragraph just quoted, or one similar thereto, is appropriate in an order of temporary injunction, where the burden is cast upon the defendant to move to set aside or modify, while under Section 571, providing for the issuance of a restraining order, a rule to show cause is issued, returnable at a specified time and place, fixed by the Court. We are therefore definitely of opinion, as above indicated, that the order of Judge Eatmon was an order of temporary injunction, and not a restraining order.

It should further be observed, and this is the essential matter involved in this appeal, that there is no provision in the order of temporary injunction for the giving of an undertaking, as required by Section 570, although the terms of this section are specific and mandatory, for it provides that 'the court or judge shall require a written undertaking on the part of the plaintiff'. Furthermore, the decisions of this Court are clearly to the effect that the Court has no power...

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6 cases
  • Marshall v. Pence
    • United States
    • South Carolina Court of Appeals
    • June 7, 2005
    ... ... deliberate trial investigation. Epps v. Bryant , 218 ... S.C. 359, 62 S.E.2d 832 (1950). Temporary injunctions are ... ...
  • Curtis v. State
    • United States
    • South Carolina Supreme Court
    • July 17, 2001
    ...in its condition at the time of the order until opportunity is offered for full and deliberate trial investigation. Epps v. Bryant, 218 S.C. 359, 62 S.E.2d 832 (1950). Temporary injunctions are interlocutory, tentative, and impermanent and are superseded by the final judgment rendered on th......
  • County Council of Charleston v. Felkel
    • United States
    • South Carolina Supreme Court
    • July 23, 1964
    ...until opportunity is offered for full and deliberate investigation and to preserve the existing status during litigation, Epps v. Bryant,218 S.C. 359, 62 S.E.2d 832; Atlantic Coast Lumber Corp. v. E. P. Burton Lumber Co., 89 S.C. 143, 71 S.E. 820; and the granting of a temporary injunction ......
  • Ajg Holdings, LLC v. Dunn
    • United States
    • South Carolina Court of Appeals
    • February 24, 2009
    ...defect, and a court could amend the order of injunction to require execution of a sufficient bond. Epps v. Bryant, 218 S.C. 359, 365, 62 S.E.2d 832, 834-35 (1950); Ex Parte Zeigler, 83 S.C. 78, 81, 64 S.E. 513, 514 (1909) (holding the injunction was correctly granted, but the court erred in......
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