Kelly v. Tiner

• Decision Date: 28 June 1910
• Parties: KELLY et al. v. TINER.
• Court: South Carolina Supreme Court

68 S.E. 465

86 S.C. 160

KELLY et al. v. TINER.

Supreme Court of South Carolina

June 28, 1910

Appeal from Common Pleas Circuit Court of Darlington County; John S Wilson, Judge.

Suit by Elias Kelly and another against John Tiner. From an order refusing to dissolve a temporary injunction, defendant appeals. Reversed.

Miller & Lawson, for appellant. McLaughlin & Tatum, for respondents.

GARY A. J.

This is an appeal from an order refusing to dissolve a temporary injunction. The question raised by the exceptions, upon which the others are dependent, is whether his honor, the circuit judge, erred in ruling, that, under the case of Cudd v. Calvert, 54 S.C. 457, 32 S.E 503, he was without authority to entertain the motion to dissolve the injunction.

In the case of Cudd v. Calvert, 54 S.C. 457, 32 S.E. 503 upon which the circuit judge based his ruling, the court uses this language: "It seems to us that where, as in this case, the action is brought solely for the purpose of obtaining an injunction, and where, if the facts alleged in the complaint are found to be true, a proper case for injunction would be presented, it is error to dissolve a temporary injunction upon a mere motion, heard upon affidavits, as that would deprive the plaintiff of his legal right to have the facts determined in the manner provided by law, instead of by affidavits--a most unsatisfactory mode of eliciting the truth." Section 246 of the Code of Civil Procedure of 1902 is as follows: "If the injunction be granted by the court, or a judge thereof, without notice, the defendant, at any time before the trial, may apply upon notice to the court, or a judge thereof, in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits, on which injunction was granted, or upon affidavits upon the part of the defendant, with or without the answer."

The rule is thus stated in Marion Company v. Tilghman Company, 75 S.C. 220, 55 S.E. 337, and affirmed in Boyd v. Trexler, 84 S.C. 51, 65 S.E. 936: "When the sole purpose of an action is for an injunction, and a temporary injunction is essential to the assertion and preservation of a legal right, if established as alleged in the complaint, it would be error to refuse or set aside a temporary injunction. Alderman v. Wilson, 69 S.C 159, 48 S.E. 85, and cases cited therein. This, however, does not mean that a right to a temporary...