Williamson v. City of High Point

200 S.E. 388, 214 N.C. 693, 1939 N.C. LEXIS 415

Opinion

Stacy, C. J.

Tbe position of appellant that tbe court was without authority to modify tbe decree entered at tbe February Term is correct. Yerys v. Ins. Co., 210 N. C., 442, 187 S. E., 583; Southerland v. R. R., 148 N. C., 442, 62 S. E., 517; 32 C. J., 506. Tbe basis for tbe final decree was, that tbe original undertaking “goes far beyond tbe powers conferred by tbe Eevenue Bond Act of 1935, and is ultra vires." But as we understand tbe record, tbe defendants’ prayer to this effect was disregarded, and rightly so.

Tbe sole question before tbe Court was whether tbe final decree entered at tbe February Term has been violated. Bacon v. Onset Bay Grove Assn., 286 Mass., 487, 190 N. E., 713; Barrone v. Moseley, 144 Ky., 294, 137 S. W., 1048. Tbe allegation and finding of dissimilarity between tbe two undertakings appears sufficient to support tbe action of tbe court in discharging tbe rule for contempt. This is tbe only question presented by tbe appeal.

Adequate cause for disturbing tbe judgment and entering one in favor of appellant has not been made to appear on tbe present record.

Affirmed.