104 N.C. 379 | N.C. | 1889
-after stating the case: It was suggested, on the argument- here, that this action was improvidently brought, because the plaintiff might have obtained the relief sought by it, and the motion in question, in a pending special proceeding. But no question in that respect is presented by the assignment of error, or by the record proper. The single ground of 'exception is, that the order granting the injunction was made without notice to the defendant.
The statute (The Code, §340) prescribes that “an injunction should not be allowed after the defendant shall have answered, unless upon notice, or upon an order to show cause,” &c. In the present case, the defendant was in Court, and bound to take notice of what was done, pending the action, in its course in term-time, and she did actually appear, by her counsel, and resist the motion for an injunction. She had notice, and acted upon it. Sparrow v. Davidson, 77 N. C., 35; University v. Lassiter, 83 N. C., 38.
Where a motion is made, in the course of an action, in term-time, and, by inadvertence or mistake, a party fails to take notice, as, regularly, he ought to do, the Court, upon application, might, and, in a proper case, should, in its discretion, grant the opposing party opportunity to be heard and make opposition, as the Court did offer to do in this case. If time to prepare to make opposition should be required
There is no error in the order appealed from.
Affirmed.
