{ "id": 8549536, "name": "RAY G. REGISTER and Wife, ELIZABETH B. REGISTER v. JOSEPH M. GRIFFIN, Trustee, and PIEDMONT PRODUCTION CREDIT ASSOCIATION", "name_abbreviation": "Register v. Griffin", "decision_date": "1969-11-19", "docket_number": "No. 6926SC387", "first_page": "572", "last_page": "576", "citations": [ { "type": "official", "cite": "6 N.C. App. 572" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "116 S.E. 2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624852 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0324-01" ] }, { "cite": "200 S.E. 906", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1939, "opinion_index": 0 }, { "cite": "214 N.C. 806", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8633069 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/214/0806-01" ] }, { "cite": "90 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "243 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622507 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/243/0173-01" ] }, { "cite": "114 S.E. 2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624711 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0586-01" ] }, { "cite": "123 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571515 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0128-01" ] }, { "cite": "148 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559664, 8559675 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0438-01", "/nc/267/0438-02" ] }, { "cite": "95 S.E. 2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "245 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604370 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/245/0074-01" ] } ], "analysis": { "cardinality": 487, "char_count": 10526, "ocr_confidence": 0.584, "pagerank": { "raw": 3.702375903190096e-07, "percentile": 0.8929848805857021 }, "sha256": "c23276c49af54c94c88d40e6337583c26af68d00ea5591b5542bf57977f863cf", "simhash": "1:94e73c404713ecee", "word_count": 1750 }, "last_updated": "2023-07-14T21:07:50.917320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MoRRis and Hedrioic, JJ., concur." ], "parties": [ "RAY G. REGISTER and Wife, ELIZABETH B. REGISTER v. JOSEPH M. GRIFFIN, Trustee, and PIEDMONT PRODUCTION CREDIT ASSOCIATION" ], "opinions": [ { "text": "Mallabd, C.J.\nThe appellants assign as error certain conditions included in the order continuing the restraining order. Appellants contend that the trial judge erred in requiring the plaintiffs to meet the conditions contained in paragraphs numbered 1, 2, and 3 of the \u201cConclusions,\u201d as set forth above, before plaintiffs would be entitled to have the injunction continued to the final hearing. Appellants raise no question about the other findings of fact or other provisions of the order.\n\u201cUpon an appeal from an order granting or refusing an interlocutory injunction, the findings of fact, as well as the conclusions of law, are reviewable by this Court.\u201d Deal v. Sanitary District, 245 N.C. 74, 95 S.E. 2d 362 (1956); Dilday v. Board of Education, 267 N.C. 438, 148 S.E. 2d 513 (1966). However, there is a presumption that the judgment entered by the trial court is correct, and the burden is upon appellants to assign and show error. Conference v. Creech and Teasley v. Creech and Miles, 256 N.C. 128, 123 S.E. 2d 619 (1962).\nCosts usually follow a final judgment. Whaley v. Taxi Co., 252 N.C. 586, 114 S.E. 2d 254 (1960).\nNo evidence appears in the record to support the finding of fact appearing in the order that \u201c(t)he Defendant, Piedmont Production Credit Association has expended the sum of $134.00 for the cost of advertising the property described in the Deed of Trust for sale, and incurred counsel fees in the prior action brought by Plaintiffs in the amount of $500.00.\u201d\n\u201cThe costs incident to a reference, including the referee\u2019s fee, are taxable in the discretion of the court.\u201d Perry v. Doub, 243 N.C. 173, 90 S.E. 2d 239 (1955). We think it was improper for the judge, in this case, as a condition precedent to the restraining order, to require plaintiffs to pay one of the defendants the sum of $634.00.\nAttorney fees, costs of advertising, and costs of reference are usually considered as elements of damages. 43 C.J.S., Injunctions, \u00a7 315. In general, there are two situations in which damages may be assessed in consequence of the issuance of an injunction.\n1. \u201cA final decision that an injunction was wrongfully obtained usually is a condition precedent to the assessment of damages in the injunction suit.\u201d 43 C.J.S., Injunctions, \u00a7 285.\n2. \u201cThe granting of an injunction is conclusive of probable cause so as to prevent recovery for malicious prosecution of the injunction suit; and final determination of the injunction suit is a condition precedent to an action for damages brought independently of the injunction bond.\u201d 43 C.J.S., Injunctions, \u00a7 307.\nMcCormick states the \u201c\u2018(p)rinciple\u2019 that counsel fees and other expenses, beyond taxable costs, in lawsuits generally are not recoverable.\u201d He further states: \u201cIn the great majority of the states, however, attorneys\u2019 fees and other reasonable and necessary expenses incurred in proceedings before final trial to vacate or dissolve the injunction are recoverable, if the injunction is dissolved on the grounds which imply that it should not have been issued originally. In such cases, the proof must identify the fees and expenses incurred on the motion to dissolve the injunction, as distinguished from those incurred in defending the suit generally.\u201d McCormick on Damages, \u00a7 109.\nGenerally, in granting injunctions the court requires a bond to insure the defendant against any loss. See G.S. 1-496; G.S. 1-497. The rule seems to be that \u201c(a)side from liability arising from bond required as a condition to the granting of the injunction, as a general rule damages are not recoverable for the wrongful issuance of an injunction unless malicious prosecution is shown.\u201d 43 C.J.S., Injunctions, \u00a7 281.\nThe court on this hearing had no jurisdiction to hear and determine the controversy on its merits. Patterson v. Hosiery Mills, 214 N.C. 806, 200 S.E. 906 (1939); Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E. 2d 792 (1960). The only questions presented to the trial judge on this hearing were whether the temporary restraining order should be continued to the hearing and the amount of bond to be required of plaintiffs. G.S. 1-496.\n\u201cWhen the judge below grants or refuses an injunction, he does so upon the evidence presented, and the only question is whether the order should be made, dissolved, or continued. He cannot go further and determine the final rights of the parties, which must be reserved for the final trial of the action.\u201d McIntosh, N.C. Practice 2d, \u00a7 2219. In requiring the plaintiffs to pay $634.00 to one of the defendants, consent to a reference, and consent to be taxed with the entire costs of such reference, as a condition precedent to the continuance of the restraining order, the court was, in effect, forcing plaintiffs to give up some of their undetermined legal rights prior to the case being heard on its merits. The primary purpose of a temporary restraining order is usually to meet an emergency when it appears that any delay would materially affect the rights of a plaintiff. The purpose of a plaintiff\u2019s undertaking pursuant to G.S. 1-496 is to assure that a defendant will be able to recover such damages \u201cas he may sustain by reason of the injunction, not exceeding the amount named, if the court should finally decide that the injunction was improperly issued.\u201d McIntosh, N.C. Practice 2d, \u00a7 2214. The court protects a plaintiff\u2019s rights by the issuance of the restraining order and protects a defendant\u2019s rights in determining the amount of the bond required.\nThe order of Judge Snepp continuing the temporary restraining order dated 21 March 1969 is modified by striking therefrom the above paragraphs numbered 1, 2, and 3, which appear in the order under \u201cConclusions,\u201d and as thus modified the order is affirmed.\nModified and affirmed.\nMoRRis and Hedrioic, JJ., concur.", "type": "majority", "author": "Mallabd, C.J." } ], "attorneys": [ "Clayton, Lane Helms by Thomas G. Lane, Jr., for plaintiff appellants.", "Griffin & Gerdes by Joseph M. Griffin for defendant appellees." ], "corrections": "", "head_matter": "RAY G. REGISTER and Wife, ELIZABETH B. REGISTER v. JOSEPH M. GRIFFIN, Trustee, and PIEDMONT PRODUCTION CREDIT ASSOCIATION\nNo. 6926SC387\n(Filed 19 November 1969)\n1. Appeal and Error \u00a7 58\u2014 review of injunctive proceedings\nUpon appeal from an order granting or refusing an interlocutory injunction, tbe findings of fact, as well as tbe conclusions of law, are reviewable by tbe Court of Appeals.\n2. Costs \u00a7 1\u2014 time of imposing costs\nCosts usually follow a final judgment.\n3. Injunctions \u00a7 12\u2014 continuance of injunction \u2014 foreclosure of deed of trust \u2014 improper conditions\nIn granting an injunction restraining a defendant trustee from foreclosing tbe deed of trust in wbicb tbe plaintiffs were grantors, tbe trial judge was without authority to require tbe plaintiffs, as a condition precedent to tbe continuing of the injunction, to (1) pay tbe defendant\u2019s costs of advertising tbe property described in tbe deed of trust, (2) pay tbe attorney fees incurred in tbe action by tbe defendant, (3) enter into an agreed order with tbe defendant for a reference of tbe case, and (4) consent to be taxed with tbe costs of the reference, since these conditions compelled tbe plaintiffs to give up undetermined legal rights prior to a bearing of tbe case on tbe merits.\n4. Injunctions \u00a7 12\u2014 temporary injunction \u2014 show cause hearing \u2014 jurisdiction of court \u2014 merits of case\nUpon a bearing to show cause why a temporary restraining order should not be continued to tbe bearing, tbe court has no jurisdiction to bear and determine tbe controversy on its merits, but has jurisdiction to determine only whether tbe temporary restraining order should be continued to tbe bearing and tbe amount of bond to be required of plaintiffs. G.S. 1-496, G.S. 1-497.\nAppeal by plaintiffs from Snepp, J., 21 March 1969 Session of Superior Court held in Mecklenbtjbg County.\nPlaintiffs in an action, S.D. #67-355, instituted on 16 November 1967, obtained an injunction on 20 October 1967 to prevent the defendant trustee in a deed of trust from foreclosing the deed of trust in which the plaintiffs were the grantors. This injunction was dismissed and the action nonsuited on 29 January 1969 when the plaintiffs failed to appear and prosecute the action. Thereafter on 13 March 1969, the plaintiffs brought this action and obtained another injunction to prevent a foreclosure under the same deed of trust. Upon a show cause hearing, the trial judge found that the injunction should be continued but imposed certain conditions precedent upon the plaintiffs. The judge required, under the heading of \u201cConclusions\u201d:\n\u201c1. That the Plaintiffs, within ten days from the date of this order, pay to the Defendant, Piedmont Production Credit Association, the costs of advertisement of the property described in the Deed of Trust in the amount of $134.00, and the sum of $500.00 in reimbursement of the counsel fees incurred by the Defendant in the action heretofore filed which is referred to above.\n2. That within ten days from the date of this order, Plaintiffs deposit with the Clerk of Court for Mecklenburg County a good and sufficient bond in the sum of $500.00, conditioned upon the payment by the Plaintiffs of the entire costs of a reference in this case and that the Plaintiffs do hereby consent that they shall be taxed with the entire costs of such reference.\n3. That the Plaintiffs, within ten days from the date of this order, enter into an agreed order with the Defendants for a reference of this case.\n4. That the Plaintiffs give a good and sufficient bond in the amount of $2,000.00, conditioned upon their payment of any damages which the Defendants may sustain, if upon the hearing of this suit it is determined that this injunction was improvidently granted.\n5. In the event plaintiffs shall not comply with these conditions the Defendants shall be entitled to proceed against the bond in the amount of $250.00 heretofore given by the Plaintiffs in this action for such damages as they may have sustained by reason of the temporary order dated March 12, 1969.\n6. In the event the Plaintiffs do not comply with the conditions set forth above that they be and are restrained and enjoined from thereafter seeking any order restraining or enjoining any subsequent attempt to sell the property described in the Deed of Trust at a foreclosure sale without notice to the Defendants. Upon the failure of the plaintiffs to comply with any of the foregoing conditions, the restraining order issued herein shall be immediately dissolved.\u201d\nUpon the entry of the order, the plaintiffs excepted and appealed to the Court of Appeals.\nClayton, Lane Helms by Thomas G. Lane, Jr., for plaintiff appellants.\nGriffin & Gerdes by Joseph M. Griffin for defendant appellees." }, "file_name": "0572-01", "first_page_order": 596, "last_page_order": 600 }