| N.C. | Sep 5, 1895
During the trial of the case in the court below his Honor intimated that the plaintiffs were not entitled to recover. Whereupon they submitted to a nonsuit and appealed to this Court, where the judgment was affirmed. Upon the certification having been made of the transcript of judgment to the Superior Court, the defendants moved against the plaintiffs and their sureties to the restraining bond, which they had executed and filed in the cause, to have their (defendants') damages assessed, which they alleged they had sustained by reason of the issuing of the restraining order. The plaintiffs objected to the proceeding and to the issue framed for that purpose on the ground that such damages should have been determined at the trial of the cause and upon the rendition of the judgment of nonsuit. The objection was overruled, and the jury assessed the damages. It was contended here for the plaintiffs that the defendants lost their right to recover damages when they allowed the plaintiffs to take the nonsuit without objection or exception. This might have been so if the plaintiffs had not in the same breath accompanied their nonsuit with an *138
appeal to this Court. If the plaintiffs had taken their nonsuit of their own motion and without appeal, the judgment being in that case (193) a final one, the plaintiffs would have been compelled then and there to lodge a motion for the assessment of their damages or else have lost their remedy. The appeal, when perfected, only suspended the judgment of the lower court and kept the action in fieri until the final judgment on appeal should be pronounced; and this Court has decided that, in actions in which injunctions or restraining orders have been issued, it is premature to have the damages growing out of the issuing of the injunction or order of restraint assessed until the final determination of the action. Crawford v. Pearson,
Cited: Timber Co. v. Rountree,