Edmonds v. Hall
72 S.E.2d 221
N.C.
1952
Check Treatment
JohNsoN, J.

Thе 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 рrevailed under the old ‍‌​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌‌​​‌​‌‌​​​‌​‌‌‌​‌‌​​​‌​‌​​​‍equity practice is stated thus by Pearson, J., in Parker v. Grammer, 62 N.C. 28 : “Where there is reason to apprehеnd that the subject of a controversy in equity will he 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 hindеred 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.”

*156 Substantiаlly tbe same rule applies under tbe present practice, but, by virtue of tbe Code of Civil Procеdure, adopted in 1868, it is extended to cases ‍‌​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌‌​​‌​‌‌​​​‌​‌‌‌​‌‌​​​‌​‌​​​‍in wbicb legal, as well as equitable, relief is sought and it is neсessary to preserve tbe property until tbe right thereto can be adjudicated.

Our present statute, wbicb stems from tbe original Code, provides that “Where, during tbe 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 bе done in violation of the rights of another party to tbe litigation respecting tbe subject of tbe action, and tending to render tbe judgment ineffective,” an order may issue to restrain such act until tbe rights of tbe parties can be determined. Gr.S. 1-185 (2).

And a court of equity, or a court in tbe exercise of its equity powers, may use tbe writ of ‍‌​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌‌​​‌​‌‌​​​‌​‌‌‌​‌‌​​​‌​‌​​​‍injunction as a remedy subsidiary to and in aid of another action or speciаl proceeding. Wilson v. Alleghany Co., 124 N.C. 7, 32 S.E. 326, and cases there cited; 43 C.J.S., Injunctions, Sec. 13; 28 Am. Jur., Injunctions, Sec. 14. See also 43 C.J.S., Injunctiоns, Sec. 19. However, in such cases, in order to justify continuing tbe writ until tbe final bearing, ordinarily it must be made to aрpear (1) that there is probable cause tbe plaintiff will be able to establish tbe asserted right, аnd (2) that there is a reasonable apprehension of irreparable loss unless tbe tempоrary order of injunction remains in force, or that in tbe opinion of tbe court such injunctive relief appears to be reasonably necessary to protect tbe plaintiff’s rights until tbe 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 tbe present case tbe record contains a recital of spеcific facts found by tbe judge upon wbicb tbe challenged decree is based. This being so, tbe plaintiffs may not call to ‍‌​​‌‌​‌​‌‌‌​​‌​​​‌‌‌‌‌​​‌​‌‌​​​‌​‌‌‌​‌‌​​​‌​‌​​​‍their aid tbe rule that where no request is made for specific findings, and none, are rеcited, tbe presumption is that tbe court found facts sufficient to support tbe decree. Hall v. Coach Co., 224 N.C. 781, 32 S.E. 2d 325; Young v. Pittman, 224 N.C. 175, 29 S.E. 2d 551. Herе tbe plaintiffs are bound by tbe court’s recital of facts as found. And these in substance are that: “a valid controversy” exists between tbe plaintiffs and defendants respecting these three questions: (1) whether tbe only feasible way out from tbe plaintiffs’ farm to tbe public road is by statutory cartway across tbe defendants’ lands; (2) whether tbe location as sought by tbe plaintiffs — which tbe defendants are attempting tо obstruct by tbe erection of a bouse — is tbe only feasible location for tbe proposed cartway; and (3) whether there is any other feasible place on tbe defendants’ lands for tbe еrection of their proposed bouse. True, these specific findings are followed by a genеral finding or conclusion that tbe rights of tbe plaintiffs to have tbe controversy deter *157 mined in the cartwаy 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 tо support the decree continuing the temporary restraining order until the final determination of thе 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 he apprehended unless the temporary restraining order is continued to the final hearing.

In this state of the record, it appears that the order aрpealed 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 apрropriate, 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.