Lowe v. Board of Commissioners

70 N.C. 532 | N.C. | 1874

Upon the application of the plaintiffs to his Honor, Judge Cloud, at Chambers, an injunction issued to defendants on the 22d of April, 1873, restraining them from selling certain lots belonging to the county, situate in the town of Lexington, and which the Board had ordered to be sold for certain purposes. (533)

The defendants, after due notice, moved, on the 5th of May following, to vacate the order of injunction, which motion his Honor refused, and continued the restraining order to the hearing. From this decision of his Honor, defendants appealed. The injunctive relief, sought in this action, is not auxiliary to another and main relief, but is the main relief itself, and the object of the action, therefore, the dissolution of the injunction would be equivalent to a dismissal of the action. In such cases where a reasonable doubt exists in the mind of the Court, whether the equity of the complaint is sufficiently negatived by the answer, the Court will not dissolve the injunction, but continue to the hearing. Much must depend upon the sound discretion of the Court to whom the question of dissolution is preferred.James v. Lemley, 37 N.C. 278; Miller v. Washburne, 38 N.C. 161. In this case the answer does not remove such reasonable doubt, created by the complaint and affidavit, without which removal, according to the principles of this Court, the injunction ought not to be disolved [dissolved] before the hearing. The novel and important questions raised by the pleadings and ably discussed before us, do not come up for decision now.

PER CURIAM. Judgment affirmed.

Marshall v. Commissioners, 89 N.C. 107; Jones v. Buxton, 121 N.C. 286;Vickers v. Durham, 132 N.C. 882; Solomon v. Sererage Co., 133 N.C. 150; Cobb v. Clegg, 137 N.C. 159; Zeiger v. Stephenson,153 N.C. 530; S. v. Scott, 182 N.C. 882; Sanders v. Ins. Co.,183 N.C. 67.