Seip v. Wright

• Decision Date: 21 February 1917
• Docket Number: 22.
• Citation: 91 S.E. 359,173 N.C. 14
• Parties: SEIP ET AL. v. WRIGHT.
• Court: North Carolina Supreme Court

91 S.E. 359

173 N.C. 14

SEIP ET AL. v. WRIGHT.

No. 22.

Supreme Court of North Carolina

February 21, 1917

Appeal from Superior Court, Currituck County; Whedbee, Judge.

Action by John Seip and others against J. O. Wright. Decree for complainants, and defendant appeals. Affirmed.

Where preliminary injunction has been granted, and there is a controverted question of fact, and it will not harm the defendant to continue the injunction, and may cause great injury to the plaintiff to dissolve it, the court generally will continue the writ until the hearing, at which controverted facts are for the jury.

The former judgment directed that J. O. Wright, plaintiff therein, recover from the Provident Land Company, one of the defendants therein, 75 shares of the original issue of $150,000 of its capital stock of the par value of $100 per share, and that defendant deliver the stock to the plaintiff and in the event that the defendant failed to deliver the stock "within 60 days after final judgment in said case the plaintiff should recover of the said defendant and its codefendants in that case the sum of $7,500, the value of the stock as assessed by the jury. Costs were also adjudged against the defendants. By consent of the parties, "the judgment was signed out of the county and out of term, but was to be recorded and filed as of September term 1916." The court adjourned for the term on September 8, 1916, and the judgment was signed on September 29, 1916, and sent to the clerk of the court of Currituck county, and was filed by him in the papers in the case on September 30, 1916. It further appears that on November 10, 1916, defendants in that action tendered to the plaintiffs therein certificate of stock No. 55 in the Provident Land Company for 75 shares, valued at $7,500, which tender was rejected by the plaintiff, I. O. Wright, upon the ground that the tender was not made in time; that is, within 60 days after judgment. This action was then brought by the defendants in that suit to restrain the plaintiff (defendant herein) from proceeding under an execution which the clerk had issued, at his request, upon the judgment in the former case. The court held that as the stock was tendered by the plaintiffs herein, the time of the tender was immaterial, and continued the restraining order to the hearing. Defendant appealed.

Ehringhaus & Small, of Elizabeth City, and Thos. Ruffin, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellees.

WALKER J. (after stating the facts as above).

The defendant contended in this court at the hearing that the certificate of stock tendered by the plaintiffs in this suit under the judgment in the other case was not for shares of the original issue of $150,000, described in the agreement of the parties to the judgment. If this position is open to the defendants, in the present state of the pleadings, proofs, findings, and judgment of the court, we would hold against him, in the absence of further proof showing that it was not a part of that issue of stock, for we think that the proof, as it now stands, tends to show that the stock is of that character. But if there is any doubt of it, the most that we can say for the defendant is that it is a controverted question and one for the jury to decide, upon the evidence, at the final hearing; the usual rule being that in such a case the injunction, if it is the main relief demanded, will be continued to the hearing, when the truth of the matter can be ascertained and justice more certainly and fully administered. Where it will not harm the defendant to continue the injunction, and may cause great injury to the plaintiff if it is dissolved, the court generally will restrain the party until the hearing. McCorkle v. Brem, 76 N.C. 407, where serious questions are raised; Harrington v. Rawls, 131 N.C. 40, 42 S.E. 461; or where reasonably necessary to protect plaintiff's rights, Heilig v. Stokes, 63 N.C. 612. The court said, by Justice Hoke, in Tise v. Whitaker, 144 N.C. 508, 57 S.E. 210:

"It is the rule with us that in actions of this character, the main purpose of which is to obtain a permanent injunction, if the evidence raises serious question as to the existence of facts which make for plaintiff's right, and sufficient to establish it, * * * a preliminary restraining order will be continued to the hearing." Hyatt v. De Hart, 140 N.C. 270, 52 S.E. 781; Harrington v. Rawls, 131 N.C. 39, 42 S.E. 461; Whittaker v. Hill, 96 N.C. 2, 1 S.E. 639; Marshall v. Commissioners, 89 N.C. 103.

If the plaintiff has shown probable cause or it can reasonably be seen that he will be able to make out his case at the final hearing, the injunction will be continued, is another way of stating the rule. Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80; Moore v. Fowle, 139 N.C. 51, 51 S.E. 796; Bynum v. Wicker, 141 N.C. 95, 53 S.E. 478, 115 Am St. Rep. 675; Craycroff v. Morehead, 67 N.C. 422; Erwin v. Morris, ...