#### JOHN D. KERR and Wife v. R. W. HICKS.

(Filed 15 March, 1911.)

injunction — Damages—Cause of Action — Judgment.

Defendant was restrained from selling plaintiff’s land upon plaintiff’s application, and ex mero motu, as a precaution, the judge restrained plaintiffs from cutting and removing timber. Plaintiffs moved for damages caused by the order restraining them, and it was Held, that a judgment upon defendant’s motion to dismiss was properly granted, as the damages sought were not recoverable.

Appeal by plaintiff from Whedbee, J., at August Term, 1910, of Sampson.

*609 F. B. Cooper for plaintiff.

Faison & Wright for defenda/nt.

Per Curiam.

This ease has been before this Court four times before, and will be found reported 122 N. C., 409; 129 N. C., 141; 131 N. C., 90; 133 N. C., 175. Summons issued in October, 1891. This branch of the case was a motion of plaintiffs to have their alleged damages caused by reason of the restraining order issued against plaintiffs, when plaintiffs restrained defendant from working timber, etc., on the land in dispute, which order likewise restrained plaintiffs from making staves, tar, etc., on the land. Defendant filed the motion set out in the record, which his Honor sustained. The injunction was issued by Judge E. T. Boylein, 10 December, 1891, nearly nineteen years ago.

It is manifest that the plaintiffs are not entitled to recover damages as contended for by them.

The defendant was restrained from selling plaintiffs’ land upon plaintiffs’ application. In the meantime, and ex mero motu as a precaution, the judge compelled plaintiff to desist from cutting and removing timber. This was a condition upon which the injunction against defendant was continued until final hearing.

The order of the Superior Court refusing plaintiffs’ motion is

Affirmed.