Kilpatrick v. Harvey

• Decision Date: 13 October 1915
• Docket Number: 179.
• Parties: KILPATRICK v. HARVEY ET AL.
• Court: North Carolina Supreme Court

86 S.E. 596

170 N.C. 668

KILPATRICK v. HARVEY ET AL.

No. 179.

Supreme Court of North Carolina

October 13, 1915

Appeal from Superior Court, Pitt County; Connor, Judge.

Action by Paul H. Kilpatrick against J. R. Harvey and others. From an order dissolving a restraining order, plaintiff appeals. Appeal dismissed.

Where sale of land under power in a mortgage is enjoined, the trial court should not dissolve its temporary restraining order except in a very plain case.

Albion Dunn, of Greenville, for appellant.

F. G James & Son, of Greenville, for appellees.

PER CURIAM.

The plaintiff sought to enjoin the sale of his property under a mortgage containing a power of sale and securing a note to the defendants in the sum of $1,200. The ground upon which the plaintiff sought to enjoin the sale was that he was intoxicated at the time of the execution of the mortgage, so much so that he had no knowledge of what he was doing, and that the defendants took advantage of his intoxicated and incapable condition to secure the execution of the instrument upon the part of the plaintiff. The judge below when hearing the matter dissolved the restraining order which had theretofore been issued. Thereupon the defendants executed the power of sale and the plaintiff's land was sold.

It is well settled that, where the act sought to be enjoined has been committed, this court will not direct the issuing of an injunction for the reason that there is nothing for the injunction to operate upon. To illustrate, in the case of Harrison v. Bryan, 148 N.C. 315, 62 S.E. 305, the plaintiff sought to enjoin the cutting down of a tree. The judge below dissolved the injunction; plaintiff appealed. Pending the appeal, the tree was cut down. It was manifest that the injunction would be abortive and the court would not do a vain thing.

Again it is held in Moore v. Monument Co., 166 N.C. 211 81 S.E. 170, that:

"The correctness of a ruling dissolving a restraining order will not be considered on appeal when it is made to appear that the act sought to be restrained has [already] been committed."

For these reasons the appeal in this case must be dismissed.

But this does not dismiss the action or affect its merits. It was stated upon the argument that the complaint in this case was filed before the sale and that is evident, as the complaint must have been filed when the restraining order was dissolved. If so, it would constitute a lis...