Leroy v. . Dickerson

4 N.C. 110

• Court: Supreme Court of North Carolina
• Decided: January 5, 1814
• Status: Published

Opinion

Although the usual practice in the courts of equity of this State has been to exclude affidavits taken ex parte to support the merits of an injunction, we know of no adjudication which would exclude the reading of depositions taken regularly on notice given to the adverse party, after the injunction has been sustained and the cause continued as an original, on a motion to dissolve the injunction by the introduction of the amended answer of the defendant. The distinction between the cases is so obvious that it need only be remarked that the reason for excluding them in the former case does not apply to the latter. In the former they are taken without notice, and ex parte. In the latter they are taken on due notice, affording the adverse party an opportunity of cross-examination.

We are of opinion that the complainant was entitled to support (111) the merits of his bill by the depositions, regularly taken in the cause, on the motion of defendant to dissolve the injunction on his amended answer.

Therefore, let the decree of dissolution be reversed and the cause remanded, with leave to complainant to support his injunction by the depositions regularly taken between the parties.

NOTE. — Upon the subject of dissolving injunctions, see Christmassv. Campbell, 2 N.C. 123; Thompson v. Allen, 3 N.C. 150; Smith v.Thomas, 22 N.C. 126; Moore v. Reed, 36 N.C. 418.