McKay v. . Chapin

26 S.E. 701, 120 N.C. 159

• Court: Supreme Court of North Carolina
• Decided: February 5, 1897
• Status: Published

Opinion

Claek, J.:

The allegation that the defendant is insolvent and is cutting down timber trees on plaintiff’s land and hauling them off, and threatens to continue to do so, to'the irreparable damage of the plaintiff, is sufficient, if true, to authorize an injunction to issue, and the appointment of a receiver. Dunkart v. Rinehart, 87 N. C., 224; Lumber Co. v. Wallace, 93 N. C., 22. Indeed, it is not now necessary to allege insolvency in sucb case. Ousby v. Neal, 99 N. C., 146; Acts 1885, Ch. 401. There is no alllegation or exception that the defendant tendered the bond authorized by Acts 1885, Ch. 94; Lewis v. Lumber Co., 99 N. C., 11; besides, the act vests the acceptance of such bond from the defendant in the discretion of the court.

It is true, the restraining order shoud have issued without filing the undertaking required by the Code, Sec. 341, but this renders the order irregular, not void. Sledge v. Blum, 63 N. C., 374. The subsequent granting of the injunction to the hearing upon the execution of a proper bond renders it now of no import that the restraining order was irregularly granted, without the preliminary bond. 'While the bond is mandatory, if the plaintiff offers to supply it this will be allowed even in this court. James v. Withers, 114 N. C., 474; Miller v. Parker, 73 N. C. 58, 60.

No error.