Opinion · Supreme Court of North Carolina

Groves v. . McDonald

Groves v. . McDonald, 223 N.C. 150 (N.C. 1943)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1943-05-05
Topic
general

Stacy, 0. J. If tbe only question bere presented were tbe vacation of tbe restraining order, and tbe correctness of tbe ruling in not continuing it to tbe bearing, tbe appeal would be dismissed ex mero motu, Yates v. Ins. Co., 166 N.

Citator

UpLaw has not yet analyzed Groves v. . McDonald. The absence of a flag is not a finding that it is good law.

Cited by
6 opinions
Stacy, 0. J.

If tbe only question bere presented were tbe vacation of tbe restraining order, and tbe correctness of tbe ruling in not continuing it to tbe bearing, tbe appeal would be dismissed ex mero motu, Yates v. Ins. Co., 166 N. C., 134, 81 S. E., 1062; Wallace v. Wilkesboro, 151 N. C., 614, 66 S. E., 657, as tbe action of tbe defendants wbicb tbe plaintiff seeks to enjoin, is now fait accompli, or a fact accomplisbed, or “water in tbe mill-tail,” as tbe late Chief Justice Hoke would say. Rousseau v. Bullis, 201 N. C., 12, 158 S. E., 553.

Tbe order, however, goes farther and dismisses tbe action. In tbis, there was error. Cox v. Kinston, 217 N. C., 391, 8 S. E. (2d), 252; Grantham v. Nunn, 188 N. C., 239, 124 S. E., 309; Owen v. Board of Education, 184 N. C., 267, 114 S. E., 390; Davenport v. Board of Education, 183 N. C., 570, 112 S. E., 246; Moore v. Monument Co., 166 N. C., 211, 81 S. E., 170; McIntosh Prac. & Proc., 994.

Injunction was only ancillary and not tbe sole purpose of plaintiff’s action. He asks for a declaration of bis rights under tbe facts alleged, and is content to withhold bis election of remedies, if any be have, while awaiting such declaration. Tbe dismissal of tbe action has occasioned tbe appeal.

Error.