171 S.E. 64 | N.C. | 1933
The judgment of the court below is as follows:
"This cause coming on to be heard before his Honor, F. A. Daniels, upon motion of R. G. Kittrell, substituted trustee, to dissolve the restraining order, and after due consideration, and the argument of counsel, the court is of the opinion that the restraining order be continued to the hearing.
It is further ordered as a condition precedent that the plaintiff pay into the office of the clerk of the Superior Court the sum of $40.00 per month from 1 February, 1933, as rent of the property, on the 10th of each month. It is ordered that this case be set for trial on Tuesday, 14 March, 1933, of Vance Superior Court.
At Halifax, N.C. 6 February, 1933. F. A. Daniels, judge, etc.
It appearing to the court that the First and Merchants National Bank of Richmond, Va., and Home Mortgage Corporation or its successors are necessary parties, it is ordered that said parties be made parties defendant in the manner provided by law. F. A. DANIELS, Judge."
The defendant made the following exceptions and assignments of error and appealed to the Supreme Court:
"1. Defendant R. G. Kittrell, substituted trustee, excepts to the refusal of the court to dissolve the restraining order.
2. R. G. Kittrell, substituted trustee, excepts to the order of the court continuing the restraining order to hearing.
3. R. G. Kittrell, substituted trustee, excepts to the order of the court making the First and Merchants National Bank of Richmond, Va., and Home Mortgage Corporation or its successors parties to the above proceeding.
4. R. G. Kittrell, substituted trustee, excepts to the judgment as rendered.
5. R. G. Kittrell, substituted trustee, excepts to the signing of said judgment by the court." The questions involved: (1) Did the court err in preserving the statusquo upon the facts set forth in this action and appearing *265 from the pleadings? (2) Did the court err in making the Home Mortgage Corporation and First and Merchants National Bank of Richmond, Va., parties defendant, where it appeared upon the record that they claimed to be beneficiaries under the deed of trust sought to be foreclosed? We think both questions must be answered in the negative.
In Holder v. Mortgage Co., ante, 207 (208), speaking to the subject, we find: "Injunctions generally will continue, where it will not harm defendant and may cause great injury to plaintiff, if dissolved. Wentz v.Land Co.,
There was no error in the court below making the cestuis que trustent
parties to the action. This matter was decided in Bank v. Thomas,
Affirmed.
