52 S.E. 781 | N.C. | 1905
This is an appeal from an order dissolving a restraining order, which had been granted until the hearing, against a tax levied by virtue of an election, authorizing (271) a special school tax, held by virtue of section 72, chapter 4, Laws 1901, as amended by section 24, chapter 435, Laws 1903. The evidence was conflicting. The judge found as facts that one-fourth of the freeholders of the district signed the petition for the election and that a majority of the voters voted in favor of the special tax, and that while there were some irregularities in holding the election and recording the result, they were not of such nature as to vitiate the election or make the collection of the tax illegal.
Ordinarily, the findings of fact by the judge below are conclusive on appeal. While this is not true as to injunction cases, in which we look into and review the evidence on appeal, still there is the presumption always that the judgment and proceedings below are correct and the burden is upon the appellant to assign and show error; and looking into the affidavits in this case we cannot say there was error below.
The general rule is that when the injunctive relief sought is not merely ancillary to the principal relief demanded in the action, but is itself the main relief, the court will not dissolve the injunction, but will continue it to the hearing. Marshall v. Commissioners,
Affirmed.
Cited: Tise v. Whitaker Co.,
(272)