Howze v. . Green

62 N.C. 250 | N.C. | 1867

An injunction, according to the prayer of the bill, staying proceedings in an action of ejectment, was granted by Saunders, J., in June, 1860. The complainant was permitted to sue in forma pauperis, and his (251) Honor did not require her to give bond to indemnify the defendant against loss by reason of the wrongful using out of the injunction.

The record shows no objection to the want of a bond at the return term, nor subsequently until Spring Term, 1867, when a motion to dissolve was made and the want of a bond assigned as a ground therefor.

The motion was overruled, and the defendant appealed. We are of the opinion that the injunction ought not to have issued without bond. The statute provides that no injunction shall issue except upon security. Rev. Code, ch. 32, sec. 14. And the statute allowing a suitin forma pauperis applies to costs, and does not embrace an injunction. But the defendant may waive the irregularity. And the delay of the defendant for six years to move a dissolution of the injunction authorized the court to infer a waiver on the part of the defendant. So an appeal bond is necessary in cases of appeal, but in Wallace v. Corbitt, 26 N.C. 45, after a delay of three years to move to dismiss for want of a bond, the court presumed a waiver of the right; and in Arrington v. Smith, 26 N.C. 59, the same was presumed after a delay of two years. In the case before us the record shows that no motion was made until after six years. It was indeed stated at the bar that the motion was made at the coming in of the answer. The record, however, does not show it, and if it did it would not alter the case, because a waiver would be presumed from the delay to callup the motion.

It was alleged as a reason for the motion that the plaintiff was committing waste upon the land in controversy. That allegation, if supported by affidavits, would have been sufficient ground for an order in the cause to restrain the plaintiff from committing (252) waste.

We think that his Honor had a discretion to refuse the motion to dissolve under the circumstances.

PER CURIAM. There is no error.