Little v. Wachovia Bank & Trust Co.

ClaRKSON, J. We have read the record and briefs of the litigants with care. It is well settled in this jurisdiction, and the matter stated in Seip v. Wright, 173 N. C., 14 (15-16), as follows: “Where it will not harm the defendant to continue the injunction, and may cause great injury to the plaintiff, if it is dissolved, the court generally will restrain the party until the hearing. McCorkle v. Brem, 76 N. C., 407; where serious questions were raised, Harrington v. Rawls, 131 N. C., 40; or where reasonably necessary to protect plaintiff’s rights, Heilig v. Stokes, 63 N. C., 612. The Court said, by Justice Hoke, in Tise v. Whitaker, 144 N. C., 508: ‘It is the rule with us that in actions of this character, the main purpose of which is to obtain a permanent injunction, if the evidence raises serious question as to the existence of facts which make for plaintiff’s right, and sufficient to establish it, a preliminary restraining order will be continued to the hearing (citing authorities). If the plaintiff has shown probable cause, or it can reasonably be seen that he will be able to make out his ease at the final hearing, the injunction will be continued, is another way of stating the rule (citing authorities). . In Hyatt v. DeHart, 140 N. C., 270, the Chief Justice said: ‘Ordinarily, the findings of fact by the judge below are conclusive on appeal. While this is not true as to injunction cases, in which we look into and review the evidence on appeal, still there is the presumption always that the judgment and proceedings below are correct, and the burden is upon the appellant to assign and show error.’ ” Teeter v. Teeter, 205 N. C., 438; Scruggs v. Rollins, 207 N. C., 335; Boushiar v. Willis, ibid., 511; Porter v. Ins. Co., ibid., 646. In Hare v. Hare, 207 N. C., 849, it is said: “Equity will generally continue a temporary restraining order to the final hearing upon a prima facie showing for injunctive relief, especially when it appears that the respondent is indemnified against loss from its continuance, and that injury might result to the petitioner from its dissolution.” In the present action the plaintiff was required to give bond. North Carolina Code, 1935 (Michie), section 861, permits this to be done. Public Laws 1933, ch. 275 (Michie, supra, sections 2593 [b], et seq.) — • “An. act to regulate the sale of real property upon the foreclosure of mortgages or deeds of trust.” Sec. 2 is as follows: “The court or judge granting such order or injunction, or before whom the same is returnable, shall have the right before, but not after, any sale is confirmed to order a resale by the mortgagee, trustee, commissioner, or other person authorized to make the same in such manner and upon such terms as may be just and equitable: Provided, the rights of all parties in interest, *729 ■or wbo may be affected thereby, shall be preserved and protected by bond or indemnity in such form and amount as'the court may require, and the court or judge may also appoint a receiver of the property or the rents and proceeds thereof, pending any sale or resale, and may make such order for the payment of taxes or other prior lien as may be necessary, subject to the right of appeal to the Supreme Court in all cases.” Under this section the court below could have required bond or may have appointed a receiver. It was discretionary with the court under this section. The judgment of the court below is Affirmed. DeviN, J., took no part in the consideration or decision of this case.