Hyatt v. Hart

• Decision Date: 12 December 1905
• Citation: 140 N.C. 270,52 S.E. 781
• Parties: HYATT et al. v. DE HART et al.
• Court: North Carolina Supreme Court

52 S.E. 781

140 N.C. 270

HYATT et al.

v.DE HART et al.

Supreme Court of North Carolina.

Dec. 12, 1905.

1. Appeal — Presumptions — Burden or Showing Error.

The presumption prevails on appeal, even in injunction cases, that the judgment and proceedings below are correct, and the burden is on appellant to assign and show error.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3667, 3670.]

2. Injunction—Restraining Order Pending Hearing—Dissolution.

Where the relief demanded by injunction is a restraining order against a tax levied by virtue of an election which had been held under Laws 1901, p. 65, c. 4, § 72, as amended by Laws 1903, p. 756, c. 435, § 24, authorizing a special school tax, and providing for the use of the tax in the education of the young, and the granting of the relief would seriously interfere with the education of the young, an injunction to the hearing is properly dissolved, where the judge found as facts that one-fourth of the freeholders of the district signed the petition for the election, and that, while there were some irregularities in holding the election and recording the result, these werenot such as to vitiate the election or make the collection of the tax illegal.

Appeal from Superior Court, Swain County; Ferguson, Judge.

Suit for injunction by R. H. Hyatt and others against S. A. De Hart and others. From an order dissolving a restraining order, plaintiffs appeal. Affirmed.

F. C. Fisher, for appellants.

CLARK, C. J. This is an appeal from an order dissolving a restraining order, which had been granted until the hearing, against a tax levied by virtue of an election, authorizing a special school tax, held by virtue of section 72, c. 4, p. 65, Laws 1901, as amended by section 24, c. 435, p. 756, Laws 1903. The evidence was conflicting. The judge found as facts that one-fourth of the freeholders of the district signed the petition for the election, and that a majority of the voters voted in favor of the special tax, and that, while there were some irregularities in holding the election and recording the result, they were not of such nature as to vitiate the election or make the collection of the tax illegal. Ordinarily, the findings of fact by the judge below are conclusive on appeal. While this is not true as to injunction cases, in which we look into and review the evidence on appeal, still there is the presumption always that the judgment and proceedings below are correct, and the burden is upon the...