Taylor v. . Boone

89 S.E. 1065, 172 N.C. 93, 1916 N.C. LEXIS 239

• Court: Supreme Court of North Carolina
• Decided: September 27, 1916
• Status: Published

Opinion

AlleN, J.

Tbe statute (Rev., sec. 810) requires tbat “a copy of tbe affidavit must be served witb tbe injunction,” and tbis must be done unless tbe judge allows service of tbe affidavit to be made thereafter.

Plaintiffs, however, contend tbat tbis requirement of tbe statute has been waived by the agreement between counsel, made out of court, tbat tbe bearing should be bad at another time. Tbis position is met and decided against tbe plaintiffs in Woodard v. Milling Co., 142 N. C., 100. In tbat case tbe defendant moved to dismiss tbe action for irregularities in tbe proceeding, and tbe plaintiff replied tbat irregularities.bad been -waived by an agreement between tbe attorneys of the plaintiff and defendant, tbat “tbe matters should be continued from 23 April, 1914, and come up for bearing on 13 May, 1914,” and tbe Superior Court found tbat tbis agreement was made. Tbis Court said: “Tbis agreement was made, doubtless, for mutual convenience, and we see nothing in it to indicate tbat counsel for defendant intended to enter a general appearance or to waive any right which could have been exercised bad be appeared on 23 April,” and held tbat there was no waiver.,

We must, therefore, affirm tbe ruling of bis Honor.

Affirmed.