Marshall v. Commissioners of Stanly County

89 N.C. 103

• Court: Supreme Court of North Carolina
• Decided: October 5, 1883
• Status: Published

Opinion

.MeriuMON, J.

The plaintiffs allege that the prospective injury to them, growing out of the alleged action taken and about to be taken by the defendants in the proposed sale of lots of land comprising a part of the public grounds on which the court-house of Stanly county was lately situated, if allowed to be consummated, will bo irreparable in its character; and they support the allegations of the complaint by sundry affidavits, tending to show that the same, and their apprehensions, are well founded.

The defendants in their answer admit the truth of some of the material allegations in the complaint, and admit others to be in a measure true, and deny that the alleged prospective injury would be irreparable, and insist, that the defendants have the lawful authority to sell the lots of land, as it is admitted they intend to do, without regard to the alleged rights of the plaintiffs; and they support their answer by numerous affidavits tending to prove the averments in the same.

This court is of opinion that in such a case the injunction ought to be continued to the hearing of the action upon its merits.

There is an important class of cases, in which relief, sneli as that demanded by the plaintiffs, will always bo granted; and it may be, this case will turn out to bo one of that class. The plaintiffs certainly make an apparent case, and they may be able to prove that they will sustain the injury they apprehend, and that it will be irreparable, unless the defendants shall be restrained; and they may be able to show that the defendants have no lawful authority to sell the lots of land as they propose to do, and thus inflict injury upon the plaintiffs.

If the defendants shall be permitted to go on, pending the action, and sell the lots of land, and it shall turn out in the end that there is injury to the plaintiffs, and that irreparable, the court could not grant adequate relief. When the court can see that the injury apprehended and complained of may arise, it will not, by its own act, cut itself off from the opportunity to grant relief; on the contrary, it will'take all proper measures to uphold its power to grant or deny relief in the orderly course of procedure.

In a case where the plaintiff alleges irreparable injury and this is made apparent by the complaint and affidavits to support the same, the court will not dissolve the injunction upon the answer of the defendant admitting some of the material allegations of the complaint, however the same may be supported by affidavits; but the injunction will be continued to the hearing of the action upon the merits; and this is so, especially, when the main relief sought is injunctive in its character.

The injunctive relief sought in this action is not merely auxiliary to the principal relief demanded, but it is the relief, and a perpetual injunction is demanded. To dissolve the injunction, therefore, would be practically to deny the relief sought and terminate the action. This the court will never do, where it may be that possibly the plaintiff is entitled to the relief demanded. In such cases, it will not determine the matter upon a preliminary hearing upon the pleadings and ex-parte affidavits; but it will preserve the matter intact until the action can bo regularly heard upon its merits. Any other course would defeat the end to be attained by the action. Troy v. Norment, 2 Jones’ Eq., 318; Lowe v. The Commissioners of Davidson Co., 70 N. C., 532.

The court properly granted an injunction restraining the defendants from selling the lots of land mentioned in the pleadings, until the final hearing and determination of the action.

There is no error, and the judgment must be affirmed. Let this be certified.

No error. Affirmed.