State on Rel. Martin v. . Sloan .

69 N.C. 128

• Court: Supreme Court of North Carolina
• Decided: June 5, 1873
• Status: Published

Opinion

Reade, J.

It was stated at the Bar that the Wilmington, Charlotte and Rutherford Railroad having been sold, neither party has any interest in the case except as to cost. When that is the case, we are not in the habit of deciding the case. After the emancipation of the slaves we declined to try any case involving title to a slave. And we put the cases off the docket. Suppose parties at the beginning of a suit and in the pleadings were to admit that they had no rights involved, but that they would carry on the suit to see which could make the other pay costs, of course we would not try it. Upon the supposition, however, that there is in this case some substantial right to be litigated, we have no hesitation in saying that the granting the injunction and the appointment of a receiver were i mprovident. The affidavit ■of Fremont is wholly insufficient. He swears that what he has stated in the complaint as of his own knowledge is true, «and what he has stated not of his own knowledge he believes to be true, whereas he has stated nothing at all, not being one of the plaintiffs.

And again, the bond for the injunction, $5,000, and the •bond of the. receiver, $10,000, were palpably insufficient. There were probably several hundred thousand dollars involved. .

There is error in the orders appealed from. Let this be «certified.

Per Curiam. Order reversed.