Buchanan v. Vance

237 N.C. 381 | N.C. | 1953

JOHNSON, J.

On the record as presented, the question of vacating the restraining order was not before the court. The plaintiffs were ordered to appear and show cause wby tbey should not be attached “as for contempt.” The judgment was entered out of term, in another county, without notice that a hearing would be had relative to vacating the restraining order. Notice of this was necessary; waiver has not been made to appear.

It follows that the restraining order was erroneously dissolved. The judgment appealed from, except as it discharges the plaintiffs from the charge of contempt of court, will be vacated and set aside, and the restraining order will be deemed and treated as being reinstated, and it is so ordered. Decision here is controlled by the principles explained by Ervin, J., and applied by the Court in Collins v. Highway Commission, ante, 277.

In this view of the case we do not reach for decision the question whether the grounds recited in the judgment as cause for dissolving the restraining order, including failure of two of the plaintiffs to sign the bond, are sufficient in law, without more, to entitle the defendants to a dissolution of the restraining order. It is observed, however, that the bond appears to be conditioned substantially as required by the order and is signed by E. 0. Guy, surety, who justified. Also, it appears that the bond was filed with and approved by the Clerk as required by the order.

In this Court the defendants demurred ore tenus to the complaint for failure to state a cause of action. ¥e are of the opinion and so hold that the demurrer should be overruled. The complaint, when construed with the degree of liberality required, presents facts sufficient to constitute a cause of action. Scott v. Insurance Co., 205 N.C. 38, 169 S.E. 801, and cases cited. See also Williams v. Aldridge Motors, write, 352.

The case will be remanded for further proceedings in accord with this opinion.

Error and remanded.