Groves v. . McDonald

25 S.E.2d 387, 223 N.C. 150, 1943 N.C. LEXIS 226

Opinion

Stacy, 0. J.

If tbe only question bere presented were tbe vacation of tbe restraining order, and tbe correctness of tbe ruling in not continuing it to tbe bearing, tbe appeal would be dismissed ex mero motu, Yates v. Ins. Co., 166 N. C., 134, 81 S. E., 1062; Wallace v. Wilkesboro, 151 N. C., 614, 66 S. E., 657, as tbe action of tbe defendants wbicb tbe plaintiff seeks to enjoin, is now fait accompli, or a fact accomplisbed, or “water in tbe mill-tail,” as tbe late Chief Justice Hoke would say. Rousseau v. Bullis, 201 N. C., 12, 158 S. E., 553.

Tbe order, however, goes farther and dismisses tbe action. In tbis, there was error. Cox v. Kinston, 217 N. C., 391, 8 S. E. (2d), 252; Grantham v. Nunn, 188 N. C., 239, 124 S. E., 309; Owen v. Board of Education, 184 N. C., 267, 114 S. E., 390; Davenport v. Board of Education, 183 N. C., 570, 112 S. E., 246; Moore v. Monument Co., 166 N. C., 211, 81 S. E., 170; McIntosh Prac. & Proc., 994.

Injunction was only ancillary and not tbe sole purpose of plaintiff’s action. He asks for a declaration of bis rights under tbe facts alleged, and is content to withhold bis election of remedies, if any be have, while awaiting such declaration. Tbe dismissal of tbe action has occasioned tbe appeal.

Error.