Moore v. Cooper Monument Co.

J. F. MOORE Et Als. v. COOPER MONUMENT COMPANY

Moore v. Cooper Monument Co., 81 S.E. 170 (N.C. 1914)

Court: Supreme Court of North Carolina · State Highest Courts
Decided: April 1, 1914
Judges: PER CURIAM.
Citations: 81 S.E. 170166 N.C. 2111914 N.C. LEXIS 369

Headnotes

1. Injunction — Restraining Order — Act Committed — Appeal and Error. The correctness of a ruling dissolving a restraining order will not be considered, on appeal when it is made to appear that tbe act sought to be restrained has been committed. 2. Injunction — Restraining Order — Trials—Final Judgment — Courts —T erms. Tbe sufficiency of tbe complaint will only be considered in determining tbe right to a restraining order, when tbe controversy is not before tbe court on its merits, and tbe action may not be dismissed by final judgment until tbe trial, and, except by consent of tbe parties, this must be in term of court of the county wherein tbe action is pending.

Summary

Appeal by plaintiffs from order of Rountree, J., given, at chambers, 24 November, 1913. This is an action commenced in the Superior Court of Pen-des County to prevent the erection of a Confederate monument at the intersection of Fremont and "Wright streets in.Burgaw, upon the ground that it would be an obstruction in the streets. The plaintiffs obtained a temporary order restraining the erection of the monument, which was returnable and was heard in Columbus County. At the hearing the temporary order was dissolved, and the action dismissed, and the plaintiff excepted and appealed. It is admitted that since the dissolution of the restraining order the monument has been erected.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Per Curiam

Pee CubiaM.

As the monument has been erected, the Court will not entertain an appeal to determine the correctness of the ruling dissolving the restraining order.

Harrison v. New Bern, 148 N. C., 315 ;

Pickler v. Board of Education, 149 N. C., 221 ;

Wallace v. Wilkesboro, 151 N. C., 614 .

We think, however, there is error in dismissing the action and entering final judgment at the hearing in Columbus County.

The merits of the action were not before the court, and the sufficiency of the complaint could only be considered in determining the right to the restraining order.

The final judgment, except when hearings are elsewhere by consent, should be rendered in the county where the action is pending and in term.

Hamilton v. Icard, 112 N. C., 589 .

Modified and affirmed. The plaintiffs will pay the costs.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 16 cases

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State Highest Courts16

Relies on it most ⓘ

UNION CARBIDE CORPORATION v. Davis116 S.E.2d 792 (N.C. 1960)
Rousseau v. Bullis158 S.E. 553 (N.C. 1931)
Glenn v. Culbreth150 S.E. 332 (N.C. 1929)
Carroll v. Warrenton Tobacco Board of Trade, Inc.131 S.E.2d 483 (N.C. 1963)
Savage v. City of Kinston78 S.E.2d 318 (N.C. 1953)
Groves v. McDonald25 S.E.2d 387 (N.C. 1943)

Most recent

Carroll v. Warrenton Tobacco Board of Trade, Inc.131 S.E.2d 483 (N.C. 1963)
UNION CARBIDE CORPORATION v. Davis116 S.E.2d 792 (N.C. 1960)
Savage v. City of Kinston78 S.E.2d 318 (N.C. 1953)
Groves v. McDonald25 S.E.2d 387 (N.C. 1943)
Cahoon v. Comrs. of Hyde175 S.E. 846 (N.C. 1934)
Rousseau v. Bullis158 S.E. 553 (N.C. 1931)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

Depth	Case	Cited by
	Pickler v. Cnty. Bd. of Educ., 62 S.E. 902 (N.C. 1908)	17
	Hamilton v. Icard, 17 S.E. 519 (N.C. 1893)	14
	Harrison v. Bryan, 62 S.E. 305 (N.C. 1908)	12
	Wallace v. Town of North Wilkesboro, 66 S.E. 657 (N.C. 1910)	12

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