Heilig v. Stokes

• Decision Date: 30 June 1869
• Citation: 63 N.C. 612
• Court: North Carolina Supreme Court
• Parties: P. N. HEILIG and others v. THOMAS STOKES and J. N. PENNINGTON.

63 N.C. 612

P. N. HEILIG and others

v.THOMAS STOKES and J. N. PENNINGTON.

Supreme Court of North Carolina.

June Term, 1869.

That a provisional injunction is granted before the issuing of a summons in the case, is a mere irregularity, which if waived by the defendant, the Court will not notice sua sponte.

The Constitutional prohibition (Art. 4, Sec. 10,) of trials of “issues of fact” by the Supreme Courts extends to issues of fact as heretofore understood, and does not hinder that tribunal from trying, ( ex. gr.) such questions of fact as may be involved in a consideration of the propriety of continuing or vacating an order for a provisional injunction.

The common injunction (as distinguished from the special) is directed against a party to some suit that involves an equity which it is desired to protect; and therefore does not include a provisional injunction (as here) in favor of a creditor, against his debtor and a third person who are alleged to be conspiring to defraud him.

Therefore, in such a case the injunction will be continued, if it appear reasonably necessary for the protection of the plaintiff's rights until the trial.

( Patrick v. Joyner, 63 N.C. 573, Capehart v. Mhoon, Bus. Eq. 30; Thigpen v. Pitt, 1 Jon. Eq. 49, Monroe v. McIntire, 6 Ire. Eq. 65, cited and approved.)

INJUNCTION, before Buxton, J., upon a motion to vacate the order, at STANLY, Spring Term, 1869.

The facts are stated in the Opinion.

His Honor declined to vacate the order, and the defendants appealed.

Ashe, Montgomery and Battle & Sons, for the appellants .

Blackmer & McCorkle, Phillips & Merrimon and W. A. Moore, contra .

RODMAN, J.

The Code of Civil Procedure, Sec. 70, requires that every action shall be commenced by issuing a summons: Sec. 188, abolishes the writ of injunction as a provisional remedy, and substitutes an injunction by order. Sec. 190 says that the injunction may be granted at the time of commencing the action or at any time afterwards before judgment; and the cases in which it may be granted are defined in Sec. 189. This action was not commenced by summons, but by a complaint in the nature of a bill in equity for injunction and relief; and the summons issued after the granting of the injunction. The defendants however appeared and answered, and moved to vacate the injunction, taking no exception on account of the irregularity and thereby waiving it. We are therefore not precluded in this case, as we were in Patrick v. Joyner, 63 N.C. 573, from considering the case on its merits.

The plaintiff alleges, in substance, that he is a creditor by bond of the defendant Pennington, that Pennington, conspiring with Stokes, fraudulently and with the intent to defeat the plaintiff's claim, made his bond to Stokes without any substantial consideration, and shortly aftewards permitted him to recover judgment, and to levy an execution upon all or nearly all of the property of Pennington, which he threatened to sell. The debt to the plaintiff is admitted, but the defendants deny all the allegations of fraud. Many affidavits were read. As the issues must be tried by a jury, and we do not wish in any way to prejudice the question of fact, we will only say of these, that they leave the matter in doubt. The Judge continued the injunction until the trial of the issues of fact, and the defendants appealed.

This Court has no jurisdiction under the Constitution to try “any issue of fact” (Art. IV, Sec. 10), and it is contended by the plaintiff that inasmuch as the order of the Judge below is based upon his decision upon facts which are in issue, a review of that order here, necessarily involves the trial of an issue of fact by this Court; and therefore cannot be made. We think the words of the Constitution have no such extensive meaning as is contended for. If they were held to have, it would follow that there could be no appeal from the order of a Judge, granting or continuing an injunction, and also that this Court has no power to decide any question of fact, which may come incidentally before it. Seeing how materially such a construction would cripple the usefulness of the Court, and add to the expenses of litigation, and what grave inconvenience would follow from the adoption of such a principle; we would be reluctant to...