70 S.E. 726 | S.C. | 1911
March 27, 1911. The opinion of the Court was delivered by This is an appeal from a decree of Hon. J.W. DeVore, Circuit Judge, enjoining the defendant from disposing of certain real estate described in the complaint. The facts alleged in complaint are fully stated in the Circuit decree, and the reasoning of the Circuit Judge so clearly vindicates his conclusions of law that we shall add very little to what he has said.
The main ground of appeal is that the Circuit Judge based his finding, that the plaintiff had made out a prima facie
case for temporary injunction on the complaint alone without taking into consideration the answer and affidavits submitted by the defendant in opposition to the motion. The answer and these affidavits were before the Circuit Judge, and we must assume that he gave them consideration in the absence of any statement in the decree to the contrary. The complaint and answer and affidavits made serious issues of facts as to the merits of the case. From consideration of these issues we agree with the Circuit Judge that without an injunction a judgment in favor of the plaintiff on the trial would probably be fruitless. On the other hand, the defendant could suffer no loss from the injunction except the temporary suspension of her power of alienation. No statement of the law on the subject is necessary, as it has been set out in recent cases. *249 Marion County Lumber Co. v. Tilghman Lumber Co.,
As held in the Circuit decree, the point that the action was prematurely brought is disposed of by the case of Payne v. Melton,