Thomason v. . Swenson
169 S.E. 620
N.C.
1933
Check Treatment
ClaeKSON, J.

In the statement of case on appeal to the Superior Court from the General County Court of Buncombe County, is the following: “Being heard in the General County Court of Buncombe County upon the pleadings as shown in the record, which said application and motion was denied by the judge of the General County Court.”

The defendants excepted and assigned error to the order of the General County Court of Buncombe County, as follows: “(1) To the action of the court in refusing the defendants’ application for an order restraining the sale of the property in controversy in this action, as asked for in defendants’ motion upon the pleadings herein. (2) To the action of the court in signing the order formally denying defendants’ motion for such restraining order, dated 25 November, 1932, as shown in the record.”

The plaintiffs made the following motion in the Superior Court: “The plaintiffs, through their attorneys, made a special appearance in the Superior Court of Buncombe County, N. 0., on 8 December, 1932, for the express purpose of opposing the hearing of the above case on appeal from the General County Court, on the ground that the said order, the signing of which is assigned as error in the case on appeal, was entered in the General County Court of 25 November, 1932, and notice of appeal given on 25 November 1932, and that such appeal has been irregularly, *762 erroneously and prematurely docketed in tbe office of tbe clerk of tbe Superior Court of Buncombe County, N. C., on 7 December, 1932, and prior to tbe expiration of time for tbe filing of countercase or prior to tbe consideration by the appellees of said statement of case on appeal and without stipulation or consent of appellees or their counsel, all of which is contrary to tbe statutory laws of North Carolina, and that tbe Superior Court of Buncombe County is without jurisdiction at this time, for tbe foregoing reasons, to bear or pass on said assignments of error or review tbe order of tbe General County Court relative to such procedure.”

Tbe November Term of tbe General County Court ended 3 December, 1932, and tbe December Term of tbe Superior Court following tbe county court began 5 December, 1932. From tbe foregoing, tbe question for decision arises: In an injunctive proceeding, where there is an exception and assignment of error to tbe order granting an injunction, must defendants make up a “statement of case on appeal?” Ve think not.

In Hamilton v. Icard, 112 N. C., 589, at p. 593, is tbe following: “But this being an appeal from tbe granting of an injunction till tbe bearing, no formal ‘case on appeal’ is required. Tbe correctness of tbe ruling in question is tested by tbe judgment appealed from, which is rendered solely upon tbe pleadings and affidavits filed in tbe cause.”

In Parker v. Bank, 200 N. C., 441, at p. 442, it is said: “From a judgment continuing tbe temporary restraining order to tbe final bearing, with leave to tbe parties to amend their pleadings, tbe defendants appeal. ... As tbe record contains no statement of case on appeal, we are limited to tbe question whether there is error in tbe judgment, tbe appeal itself being an exception thereto. Wallace v. Salisbury, 147 N. C., 58; R. R. v. Stewart, 132 N. C., 249; Clark v. Peebles, 120 N. C., 31.”

In Seip v. Wright, 173 N. C., 14, at p. 16, it is written: “On a similar question, in Hyatt v. DeHart, 140 N. C., 270, tbe Chief Justice said: “Ordinarily, tbe findings of fact by tbe judge below are conclusive on appeal. While this is not true as to injunction cases, in which we look into and review tbe evidence on appeal, still there is tbe presumption always that tbe judgment and proceedings below are correct, and tbe burden is upon tbe appellant to assign and show error and looking into tbe affidavits in this case, we cannot say there was error below,” etc.

Tbe statement of ease on appeal from tbe General County Court of Buncombe County to tbe Superior Court admits that iii tbe General County Court of Buncombe County, tbe case was beard upon tbe pleadings as shown in tbe record. Tbe judgment of tbe Superior Court says *763 “being beard on the record on appeal consisting of the summons, complaint, answer, orders, judgment and assignment of errors.” From the record they seem to have been the same.

N. C., Code, 1931 (Michie), sec. 1608(jj), in part, is as follows: “Appeals may be taken by either the plaintiff or the defendant from the said county court to the Superior Court of said county in term time for errors assigned in matters of law in the same manner and under the same requirements as are now provided by law for appeals from the Superior Court to the Supreme Court,” etc.

The appeal was taken to and during the next term of the Superior Court. Rules of Practice in the Supreme Court, 200 N. C., 816. Part of Rule 5, is as follows: “The transcript of the record on appeal from a court in a county in which the court shall be held during the term of this Court may be filed at such term or at the next succeeding term.”

We think that this being an injunctive procedure not requiring a statement of case on appeal, that the motion of plaintiffs to dismiss was properly refused. See Cook v. Bailey, 190 N. C., 599; Davis v. Wallace, 190 N. C., 543, 546; Smith v. Texas Co., 200 N. C., 39; Bakery v. Ins. Co., 201 N. C., 816.

We see no error in the appeal from the General County Court to the Superior Court. C. S., 643, in reference to making up case on appeal, statement, service and return, is not applicable. As stated heretofore, in an appeal from an order granting or refusing an injunction, an exception and assignments,of error to the judgment is sufficient.

As to the relief demanded by defendants, it must be borne in mind that plaintiffs came into a court of equity and prayed for judgment against defendants, etc. One of the rules and maxims of equity, is: “he who seeks equity must do equity.” A party cannot claim the interposition of the court for relief unless he will do what it is equitable should be done by him as a condition precedent to that relief.

In Waters v. Garris, 188 N. C., 306, at p. 310, we find: “In any action brought by the creditor to recover upon any usurious note or other evidence of debt affected with usury, it is lawful for the party against whom the action is brought to plead as a counterclaim or set off, the penalties provided by the statute, to wit, twice the amount of interest paid, and also the forfeiture of the entire interest charged. But see Miller v. Dunn, post, 397.”

In Parker v. Bank, supra, speaking to the subject, at p. 443, it is said: “It is the general practice of equity courts, upon a showing of a basis for injunctive relief, to continue the restraining order to the final hearing, when it appears that no harm can come to the defendants from such continuance, and great injury might result to the plaintiffs *764 from a dissolution of the injunction. Cullins v. State College, 198 N. C., 337; Hurwitz v. Sand Co., 189 N. C., 1; Seip v. Wright, 173 N. C., 14.”

We see no error in remanding the case to the General County Court. On appeal from the county court to the Superior Court “error in law” was found. For the reasons given, the judgment of the court below is

Affirmed.