Moore v. Cooper Monument Co. , 166 N.C. 211 ( 1914 )

This is an action commenced in the Superior Court of PENDER COUNTY to prevent the erection of a Confederate monument at the intersection of Fremont and Wright streets in Burgaw upon the ground that it would be an obstruction in the streets.

The plaintiffs obtained a temporary order restraining the erection of the monument, which was returnable and was heard in Columbus County.

At the hearing the temporary order was dissolved, and the action dismissed, and the plaintiff excepted and appealed.

It is admitted that since the dissolution of the restraining order the monument has been erected. As the monument has been erected, the Court will not entertain an appeal to determine the correctness of the ruling dissolving the restraining order. Harrison v. New Bern, 148 N.C. 315; Pickler v. Board of Education,149 N.C. 221; Wallace v. Wilkesboro, 151 N.C. 614.

We think, however, there is error in dismissing the action and entering final judgment at the hearing in Columbus County.

The merits of the action were not before the court, and the sufficiency of the complaint could only be considered in determining the right to the restraining order.

The final judgment, except when hearings are elsewhere by consent, should be rendered in the county where the action is pending and in term.Hamilton v. Icard, 112 N.C. 589.

Modified and affirmed. The plaintiffs will pay the costs.

Cited: Kilpatrick v. Harvey, 170 N.C. 668; In re Parker, 177 N.C. 468;S. v. Scott, 182 N.C. 882; Edwards v. Comrs., 183 N.C. 61; Griffith v.Board of Education, 183 N.C. 409; Davenport v. Board of Education,183 N.C. 577; Galloway v. Board of Education, 184 N.C. 248; TobaccoGrowers Asso. v. Pollock, 187 N.C. 413; Grantham v. Nunn. 188 N.C. 242;Boyd v. Brooks, 197 N.C. 648; Glenn v. Culbreth, 197 N.C. 678; Board ofEducation v. Comrs. of Johnston County, 198 N.C. 431; Rousseau v. Bullis,201 N.C. 14; Cahoon v. Comrs. of Hyde County, 207 N.C. 49; Groves v.McDonald, 223 N.C. 141.