State v. Richmond & Danville Railroad

74 N.C. 287

• Court: Supreme Court of North Carolina
• Decided: January 15, 1876
• Status: Published

Opinion

Bead®, J.

The action -was brought to enjoin the defendants, who' were the lessees of the North Carolina Eailroad, from changing the gauge of that road. A restraining order was granted without notice, and then, upon notice, an injunction was granted until the final hearing. From that order the defendants appealed to this court. And this court directed the injunction to be dissolved. That, of course, carried the costs against the plaintiff ; for the statute provides, “ that in all civil actions, prosecuted in the name of the State, by an officer duly authorized for that purpose, the State shall be liable for costs in the same cases, and to the same extent as private parties.” Bat. Bev., chap. 17, sec. 288, C. C. P.

But the injunction -was continued until the hearing, upon condition that the plaintiff give bond with surety, in the sum. of $50,000 to indemnify the defendants, the bond to be given, by a day>named, or else the injunction to be dissolved. From so much of the order as required the plaintiff to give the $50,-000 bond, the plaintiff appealed. We assume that on the day named, the plaintiff gave the $50,000 bond, notwithstanding the appeal, although it is not so stated in the record, and no-such bond appears among the papers.

We are now asked to decide:

(1.) First, whether it was lawful to require the plaintiff to give the bond.

(2.) Secondly, are the sureties upon said bond liable.

We decline to decide the first point, because it is of no practical importance. The plaintiff gave the bond, or if she did not, there is no need that she should, or should not give it' now; because the subject matter of the action .was decided upon the defendant’s appeal. In cases where slaves were the-subjects of actions pending at their emancipation, we declined to decide the cases, as the subject matters were gone, and nothing involved but the costs. Reid v. Morrison, Phil. Eq. 31. And we have lately said, that we would not try a case when nothing but the costs is involved. Martin v. Sloan, 69 N. C. Rep., 128.

In such cases we dismiss the appeal.

We decline to decide the second point, as to the liability of the sureties, because it is not presented by the record.

The liability of the sureties does not necessarily depend upon the liability of the principal. Davis v. Commissioners of Stokes Co., 72 N. C. Rep., 441.

Appeal dismissed.

Per Curiam. Judgment affirmed.