Edmonds v. Hall , 236 N.C. 153 ( 1952 )

72 S.E.2d 221 (1952) 236 N.C. 153

EDMONDS et ux.
v.
HALL et ux.

No. 96.

Supreme Court of North Carolina.

September 17, 1952.

Carl R. Stuart, Marshall, for defendants, appellants.

Calvin R. Edney, Marshall, and Geo. M. Pritchard, Asheville, for plaintiffs, appellees.

JOHNSON, Justice.

The defendants' only exception is to the order continuing the temporary restraining order until the final determination of the cartway proceeding. Therefore the single question presented by this appeal is whether the facts found by the court below are sufficient to sustain the order. Sprinkle v. Reidsville, 235 N.C. 140, 69 S.E.2d 179.

The rule that prevailed under the old equity practice is stated thus by Pearson, J., in Parker v. Grammer, 62 N.C. 28: "Where there is reason to apprehend that the subject of a controversy in equity will be destroyed, or removed, or otherwise disposed of by the defendant, pending the suit, so that the complainant may lose the fruit of his recovery, or be hindered and delayed in obtaining it, the court, in aid of the primary equity, will secure the fund by the writ of sequestration, or the writs of sequestration and injunction, until the main equity is adjudicated at the hearing of the cause."

Substantially the same rule applies under the present practice, but, by virtue of the Code of Civil Procedure, adopted in 1868, it is extended to cases in which legal, as well as equitable, relief is sought and it is necessary to preserve the property until the right thereto can be adjudicated.

Our present statute, which stems from the original Code, provides that "When, during the litigation, it appears by affidavit that a party thereto is doing, or threatens or is about to do, or is procuring or suffering, some act to be done in violation of the rights of another party to the litigation respecting the subject of the action, and tending to render the judgment ineffectual", an order may issue to restrain such act until the rights of the parties can be determined. G.S. § 1-485, subd. 2.

And a court of equity, or a court in the exercise of its equity powers, may use the writ of injunction as a remedy subsidiary to and in aid of another action or special proceeding. Wilson v. Alleghany Co., 124 N.C. 7, 32 S.E. 326, and cases there cited; 43 C.J.S., Injunctions, § 13; 28 Am. Jur., Injunctions, § 14. See also 43 C.J.S., Injunctions, § 19. However, in such cases, in order to justify continuing the writ until the final hearing, ordinarily it must be made to appear (1) that there is probable cause the plaintiff will be able to establish the asserted right, and (2) that there is a reasonable apprehension of irreparable loss unless the temporary order of injunction remains in force, or that in the opinion of the court such injunctive relief appears to be reasonably necessary to protect the plaintiff's rights until the controversy can be determined. Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80. See also McIntosh, N. C. P. & P., Sec. 873.

In the present case the record contains a recital of specific facts found by the Judge upon which the challenged decree is based. This being so, the plaintiffs may not call to their aid the rule that where no request is made for specific findings, and none are recited, the presumption is that the court found facts sufficient to support the decree. Hall v. Queen City Coach Co., 224 N.C. 781, 32 S.E.2d 325; Young v. Pittman, 224 N.C. 175, 29 S.E.2d 551. Here the plaintiffs are bound by the court's recital of facts as found. And these in substance are that: "a valid controversy" exists between the plaintiffs and defendants respecting these three questions: (1) whether the only feasible way out from the plaintiffs' farm to the public road is by statutory cartway across the defendants' lands; (2) whether the location as sought by the plaintiffs—which the defendants are attempting to obstruct by the erection of a house—is the only feasible location for the proposed cartway; and (3) whether there is any other feasible place on the defendants' lands for the erection of their proposed house. True, these specific findings are followed by a general finding or conclusion that the rights of the plaintiffs to have the controversy determined in the cartway proceeding would be defeated by permitting the defendants to construct the house at the point contemplated by them. Nevertheless, it is manifest that the recited findings in their totality are insufficient to support the decree continuing the temporary restraining order until the final determination of the cartway proceeding.

The findings are silent on the essential question whether probable cause exists that the plaintiffs will be able to establish the asserted primary right. And nowhere is it found that irreparable loss, or its equivalent, may reasonably be apprehended unless the temporary restraining order is continued to the final hearing.

In this state of the record, it appears that the order appealed from was erroneously entered and must be set aside, and it is so ordered. The cause will be remanded to the court below for such further proceedings and orders as may be appropriate, on motion of the interested parties, under the usual practice and procedure and in accord with this opinion.

As to the temporary restraining order issued by Judge Bobbitt the day the summons was issued, the facts found therein appear to be sufficient to sustain it. Besides, it stands unchallenged by the defendants. Therefore it will remain in full force and effect pending further order of the court below.

Error and remanded.