Hemphill v. Moore

• Decision Date: 09 December 1889
• Citation: 10 S.E. 313,104 N.C. 379
• Parties: HEMPHILL et al. v. MOORE.
• Court: North Carolina Supreme Court

10 S.E. 313

104 N.C. 379

HEMPHILL et al. v. MOORE.

Supreme Court of North Carolina

December 9, 1889

Appeal from superior court, McDowell county; FRED PHILIPS, Judge.

This was a creditors' bill brought by Hemphill and others against Moore. At the appearance term of the court the plaintiffs filed their complaint, and the defendant filed her answer thereto, and an order of reference was taken. At the next succeeding term, in the course of the action, the plaintiffs, in open court, moved upon affidavit, deemed pertinent and sufficient, for an injunction. One of the counsel of the defendant appeared, and opposed the motion. The following is the material part of the case stated on appeal: "Counsel for the defendant voluntarily entered an appearance for the purpose of resisting the motion for an order restraining the defendant until the hearing. The facts set forth in the affidavit were admitted to be true by defendant's counsel in open court. Upon this admission and after full argument of the motion, the counsel for plaintiffs moved his honor to grant the order restraining the defendant until the hearing, as prayed for, which motion was granted by his honor. After the order had been signed granting the injunction, as above stated, counsel for the defendant administratrix gave notice that they would pray for an appeal upon the ground that the order was issued improvidently, being without notice. The court, with the consent of the plaintiffs' counsel, then offered again to allow the defendant to file affidavits to the merits, and to open up the case if the allegations were denied or the equities of plaintiffs contested, which counsel refused to do, but stated that they would rely on want of notice as the ground of appeal." Thereupon the defendant appealed.

Batchelor & Devereux, for appellant.

MERRIMON C.J., (after stating the facts as above.)

It was suggested on the argument here that this action was improvidently brought, because the plaintiffs might have obtained the relief sought by it and the motion in question in a pending special proceeding. But no question in that respect is presented by the assignment of error or by the record proper. The single ground of exception is that the order granting the injunction was made without notice to the defendant. The statute (Code, § 340) prescribes that "an injunction shall not be allowed after the defendant shall have answered, unless upon notice, or upon an...