Proctor v. Carolina Fertilizer & Phosphate Works

Clark, C. J. From an inspection of tbe pleadings, affidavits, and orders it appears tbat there were serious controverted questions for tbe jury to decide at tbe final bearing upon tbe allegations and evidence tending to show deceit and fraud. In such case tbe usual rule is tbat when, as here, tbe injunction is tbe main relief demanded, it will be continued to tbe bearing in order tbat tbe truth of tbe matters in controversy can be ascertained, and justice more certainly and fully administered, especially where serious questions are raised and it is neces *157 sary for tbe plaintiff’s protection tbat matters be beld in abeyance until the facts can be properly ascertained and the law duly applied. In Tise v. Whitaker, 144 N. C., 508, Hoke, J., says: “It is a rule in an action of this character, where the main purpose is to obtain a permanent injunction, if the evidence raises a serious question as to the existence of facts which make for the plaintiff’s right, and sufficient to establish it, «the preliminary restraining order is continued to the hearing.” When the plaintiff has shown probable cause, or it may be seen that he will be able to make out his case at the final hearing, the injunction will be continued. Seip v. Wright, 173 N. C., 14; Yount v. Setzer, 155 N. C., 213; Hyatt v. DeHart, 140 N. C., 270. This Court has repeatedly held that where the dissolution of the injunction would probably work irreparable injury to the plaintiff, it should be continued to the hearing. The bond required of the plaintiff, and which has been duly filed, will be ample protection to the appellant against any apprehended damage. The defendant Jesse Eussell further assigns as error that the injunction should have been dissolved because the evidence discloses that Jesse Eussell is the bona fide holder in due course of the certificate of deposit in the Bank of Greenville, and there is no evidence to the contrary. Section 15, however, of the complaint, treated as an affidavit, alleges that no authority was vested in D. C. Eussell, or any officer of the company, to transfer the certificate, that it was obtained by fraud and deceit, which was known to the said Jesse Eussell, and that he is not a purchaser for value in due course and without notice; that he is a cousin of the president of the company, and was merely attempting to collect said certificate for the use and benefit of D. 0. Eussell, and that he was not the bona fide holder thereof. Upon such affidavit and allegations the matter should be held until the facts can be determined. The defendant Eussell also assigns as error that it is not shown how the certificate of deposit was secured, but it is further alleged in the complaint treated as an affidavit, that it was procured through fraud, misrepresentation and deceit; and further, that the money for said note remaining in the Bank of Grimesland should not be paid out, upon the strength of a note whose assignment was procured by the defendant through fraud, as alleged. In Mfg. Co. v. Summers, 143 N. C., 102, Hoke, J., says: “When a man’s property has been obtained from him by actionable fraud or covin, the owner can fully recover it from the wrongdoer as long as he can identify or trace it; and the right attaches not only to the wrongdoer himself, but to any one to whom the property has been transferred otherwise than in good faith and for valuable consideration; and this applies *158 not only to specific property, but to money and cboses in action.” In that case the verdict of the jury having established the right of the plaintiff to a fund in bank as against one of the defendants who was insolvent and had attempted to misappropriate it, the payment of a cashier’s check covering said fund which he had endorsed to the other defendant, was restrained until the rights of parties were fully determined. In Parker v. Grammar, 62 N. C., 28, it was held: “Where there is reason to apprehend that the subject of the controversy will be destroyed or removed or'otherwise disposed of by the defendant, pending this suit, so that the complainant may lose the fruit of his recovery or be hindered or delayed in obtaining it, -the Court will secure the fund by sequestration and injunction until the main equities are adjudicated in the hearing.” All the parties being in court, it was eminently proper that all the matters in controversy should be determined in the same action, and that the litigation being in one forum, a multiplicity of suits may be avoided. Affirmed.