Nansemond Timber Co. v. Rountree

• Decision Date: 22 February 1898
• Citation: 29 S.E. 61,122 N.C. 45
• Parties: NANSEMOND TIMBER CO. v. ROUNTREE et al.
• Court: North Carolina Supreme Court

29 S.E. 61

122 N.C. 45

NANSEMOND TIMBER CO. v. ROUNTREE et al.

Supreme Court of North Carolina

February 22, 1898

Appeal from superior court, Chowan county; Brown, Judge.

Action by the Nansemond Timber Company against B. G. Rountree and others for damages and an injunction. Plaintiff took a voluntary nonsuit, and from an assessment of defendants' damages it appeals. Reversed.

Shepherd & Busbee, for appellant.

Jones & Boykin, for appellees.

MONTGOMERY J.

The plaintiff took a nonsuit, and at the proper time an issue was submitted to the jury: "What damages have the defendants sustained by reason of the wrongful issuing of the injunction in this cause?" In the argument here it was insisted by the plaintiff's counsel that the damages to which the defendants were entitled, if entitled to any, could not be assessed upon a motion in the cause, for the reason that the plaintiff had taken a voluntary nonsuit, and that, therefore there had been no final determination of the matter in issue. The proceeding, however, was regular. Raleigh & W. Ry Co. v. Glendon & G. Min. & Mfg. Co., 117 N.C. 191, 23 S.E. 181. In that case the court said: "If the plaintiffs had taken their nonsuit of their own motion and without appeal, the judgment being in that case a final one the plaintiffs would have been compelled then and there to lodge a motion for the assessment of their damages, or else have lost their remedy." The plaintiff offered in evidence, on the inquiry as to damages, a deed for the purpose of showing title in itself to a tract of land, which was the subject of the litigation between the parties, before the bringing of the action. The defendants' objection to the testimony offered was properly sustained. In the judgment of nonsuit there was an order dissolving the injunction, and it seems clear that, after final judgment against the plaintiff and the dissolution of the injunction, no matters should have been heard at the time of the assessment of damages which constituted a defense to the action. High, Inj. § 1652.

It appears from the case that, at the time the injunction was served, there was on the land a considerable quantity of timber already cut by the defendants, and that the plaintiff, after the injunction was served, converted the same to its own use. In reference to this timber and its conversion by the plaintiff, the plaintiff requested the court to instruct the jury that the defendants were not entitled to recover the value of the timber. His honor refused to give the instruction. We think there was no error in that refusal.

The plaintiff insists that the damages are too remote; that they do not arise necessarily and proximately by reason of the injunction. We do not concur in this view. The injunction order, while it did not in so many words prohibit the defendants from entering upon the land, yet did deprive them of the right of the possession and control of both the land and the cut timber. The order was in these words: "In the meantime the defendants, and each of them, their agents and employés, are enjoined and forbidden to enter upon the land described in the complaint, to cut or to remove any timber or other thing from said land, or to commit any trespass of any kind thereon. They are likewise restrained and forbidden to dispose of, move, or secrete any timber or other thing cut from said land, wherever it may now be." The defendants were put to a great disadvantage by reason of the service of the injunction. Any attempt on their part to have had the timber protected by removal to a place of security from pillage or loss by decay would have subjected them to the pains of contempt proceedings. Under these circumstances, the plaintiff converted the property to its own use, and carried it off the premises. Instead of leaving the property to abide the result of the suit, the plaintiff taking advantage of its position in law held by the force of the injunction...