Harrison v. Bryan
| Decision Date | 16 September 1908 |
| Citation | 148 N.C. 315,62 S.E. 305 |
| Court | North Carolina Supreme Court |
| Parties | HARRISON. v. BRYAN et al. |
Appeal and Error—Questions Reviewable —Immaterial Questions.
An appeal from an order dissolving an order restraining a city from cutting down a tree, issued in a suit for injunctive relief only, will be dismissed, without prejudice to the right to commence an action for damages, on it appearing that, pending the appeal, the tree has been cut down by the city authorities.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3122.]
Appeal from Superior Court, Craven County.
Action by Mary H. Harrison against J. A. Bryan and others for an injunction to restrain the cutting down of a shade tree standing at the curb of the street and in front of plaintiff's property. From an order dissolving the restraining order issued, plaintiff appeals. Dismissed.
D. E. Henderson and G. V. Cowper, for appellant.
W. W. Clark and W. D. McIver, for appellees.
It appearing to the court upon affidavit of defendant, which is not contradicted, that since the dissolution of the restraining order in this case, by his honor Judge Guion, and pending this appeal, the tree described in the pleadings has been cut down by the city authorities of Newbern, and that there is nothing now to enjoin, and this being an action for injunctive relief only, it is ordered that the action be dismissed, without prejudice to any rights the plaintiff may have to commence another action for damages, if so desired.
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McCullough v. Scott
...66 S.E. 657; Moore v. Monument Co., 166 N.C. 211, 81 S.E. 170. But they do not apply to this case, as the facts are not the same. In Harrison v. Bryan, supra, the tree had fallen under stroke of the axe, never to rise again. It could not grow again after it had been destroyed. It had died a......
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Mccullough v. Scott, (No. 443.)
...this case is like that where the tree was cut down, after the restraining order against felling it had been vacated. Harrison v. Bryan, 148 N. C. 315, 62 S. E. 305, and these additional cases are cited, supposedly to the same effect Plckler v. Board of Education, 149 N. C. 221, 62 S. E. 902......
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In re Parker
...... threatened, but had been accomplished, as in the Newbern Case. of felling the tree (Harrison v. Bryan and. [99 S.E. 345.] . City of Newbern, 148 N.C. 315, 62 S.E. 305), and there was no. practical way of preventing an apprehended or ......
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In Re Parker.
...be restrained was not only threatened, but had been accomplished, as in the Newborn Case of felling the tree (Harrison v. Bryan and City of Newbern, 148 N. C. 315, 62 S. E. 305), and there was no practical way of preventing an apprehended or threatened wrong, or of protecting the right, by ......