Wentz v. Piedmont Land Co.

135 S.E. 480, 193 N.C. 32, 1927 N.C. LEXIS 273

• Court: Supreme Court of North Carolina
• Decided: January 12, 1927
• Status: Published

Opinion

Clarkson, J.

The rights of the parties to the controversy are complicated. Certain principles of law are applicable when the facts are ascertained. 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.

Plaintiff hás given bond, in accordance with the order continuing the injunction to the hearing, “conditioned upon his saving the defeirdants harmless from any loss or damage,” etc.

From a careful study of the entire record, we can find no reversible error in the order of the court below.

In Seip v. Wright, 173 N. C., at p. 15, it is held: “Where it will not harm the defendant to continue the injunction, and may cause great injury to the plaintiff, if it is dissolved, the court generally will restrain the party until the hearing. McCorkle v. Brem, 76 N. C., 407; where serious questions were raised. Harrington v. Rawls, 131 N. C., 40; or where reasonably necessary to protect plaintiff’s rights, Heilig v. Stokes, 63 N. C., 612. ... If the plaintiff has shown probable cause or it can reasonably be seen that he will be able to make out his case at the final hearing, the injunction will be continued is another way of stating the rule,” and cases cited. Cab Co. v. Creasman, 185 N. C., p. 556; Johnson v. Jones, 186 N. C., p. 235; Plott v. Comrs., 187 N. C., p. 125; Brinkley v. Norman, 190 N. C., p. 851.

In Hurwitz v. Sand Co., 189 N. C., p. 6, it is said: “A court of equity looks always towards doing justice to the parties and in good conscience protecting their rights until the final adjudication of the controversy through the .courts. . . . The courts of equity are gradually adjusting themselves to modern conditions and look to, what in good conscience is for the best interest of the litigants, without resorting to any hard or fast rule.”

For the reasons given, the order of the court below is

Affirmed.