New Hope Realty Co. v. Barnes

Supreme Court of North Carolina

New Hope Realty Co. v. Barnes

147 S.E. 617, 197 N.C. 6, 1929 N.C. LEXIS 128

CourtSupreme Court of North Carolina

DecidedApril 3, 1929

StatusPublished

Cited by6 cases

This text of 147 S.E. 617 (New Hope Realty Co. v. Barnes) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

New Hope Realty Co. v. Barnes, 147 S.E. 617, 197 N.C. 6, 1929 N.C. LEXIS 128 (N.C. 1929).

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Opinion

Clarkson, J.

The plaintiff contends that the question involved: “Is this covenant of such a nature as to justify a restraint of its violation until all questions of fact relating thereto can be determined?” ¥e think so.

Ordinarily, the right to injunctive relief to compel the observance of covenants and restraintive clauses, is recognized in this jurisdiction. Church v. Bragaw, 144 N. C., 126; Guilford v. Porter, 161 N. C., 366; Bradshaw v. Millikin, 173 N. C., 432; Davis v. Robinson, 189 N. C., 589; Nye v. Williams, 190 N. C., 129.

In Wentz v. Land Co., 193 N. C., at p. 34, it is said: “On the record, as to material facts, there is serious conflict. In injunction proceedings this Court has the power to find and review the findings of fact on appeal, but the burden is on the appellant to assign and show error, and there is a presumption that the judgment and proceedings in the court below are correct.” R. R. v. Transit Co., 195 N. C., 305.

In Ohio Oil Co. v. Conway, Supervisor of Public Accounts, et al. (La.), U. S. Supreme Court, per curiam opinion filed 5 March, 1929, *8 speaking to tbe subject, it is said: “But enough appears to make it plain that there is a real dispute over material questions of fact which cannot be satisfactorily resolved upon the present affidavits and yet must-be resolved before the constitutional validity of the amendatory statute can be determined. . . . Where the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable if the application be denied and the final decree be in his favor, while if the injunction be granted the injury to the opposing party, even if the final decree be in his favor, will be considerable, or may be adequately indemnified by a bond, the injunction usually will be granted. Love v. Atchison, T. & S. F. Ry. Co., 185 Fed., 321, 331-332.”

The defendants have filed an elaborate brief, but inapplicable on the present state of the record. On the record as to material facts there is serious conflict. The burden is on defendants to assign and show error. The presumption is that the judgment and proceedings in the court below are correct. For the reasons given the judgment of the court below is

Affirmed.

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Clarkson, J.

The plaintiff contends that the question involved: “Is this covenant of such a nature as to justify a restraint of its violation until all questions of fact relating thereto can be determined?” ¥e think so.

Ordinarily, the right to injunctive relief to compel the observance of covenants and restraintive clauses, is recognized in this jurisdiction. Church v. Bragaw, 144 N. C., 126; Guilford v. Porter, 161 N. C., 366; Bradshaw v. Millikin, 173 N. C., 432; Davis v. Robinson, 189 N. C., 589; Nye v. Williams, 190 N. C., 129.

In Wentz v. Land Co., 193 N. C., at p. 34, it is said: “On the record, as to material facts, there is serious conflict. In injunction proceedings this Court has the power to find and review the findings of fact on appeal, but the burden is on the appellant to assign and show error, and there is a presumption that the judgment and proceedings in the court below are correct.” R. R. v. Transit Co., 195 N. C., 305.

In Ohio Oil Co. v. Conway, Supervisor of Public Accounts, et al. (La.), U. S. Supreme Court, per curiam opinion filed 5 March, 1929, *8 speaking to tbe subject, it is said: “But enough appears to make it plain that there is a real dispute over material questions of fact which cannot be satisfactorily resolved upon the present affidavits and yet must-be resolved before the constitutional validity of the amendatory statute can be determined. . . . Where the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable if the application be denied and the final decree be in his favor, while if the injunction be granted the injury to the opposing party, even if the final decree be in his favor, will be considerable, or may be adequately indemnified by a bond, the injunction usually will be granted. Love v. Atchison, T. & S. F. Ry. Co., 185 Fed., 321, 331-332.”

The defendants have filed an elaborate brief, but inapplicable on the present state of the record. On the record as to material facts there is serious conflict. The burden is on defendants to assign and show error. The presumption is that the judgment and proceedings in the court below are correct. For the reasons given the judgment of the court below is

Affirmed.

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147 S.E. 617, 197 N.C. 6, 1929 N.C. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-hope-realty-co-v-barnes-nc-1929.

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