{
  "id": 8569389,
  "name": "CITY OF NEW BERN, a North Carolina Municipal Corporation, v. ERSLE M. WALKER and wife, RUBY EPTING WALKER",
  "name_abbreviation": "City of New Bern v. Walker",
  "decision_date": "1961-09-20",
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  "first_page": "355",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T18:41:58.690444+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "CITY OF NEW BERN, a North Carolina Municipal Corporation, v. ERSLE M. WALKER and wife, RUBY EPTING WALKER."
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nIn effect, defendants contend that they are entitled, as a matter of right, to continue and maintain their commercial garage business in statu quo pending the determination of the validity of the zoning ordinance, upon making bond in an amount to be fixed by the Superior Court.\n\u201c... G.S. 160-179 expressly authorizes the use of the injunctive power of the court to enjoin violations of zoning ordinances.\u201d Raleigh v. Morand, 247 N.C. 363, 366, 100 S.E. 2d 870. \u201cThere can be no doubt that this statute authorizes the present proceeding; and it may be found to enlarge the scope of the ordinary equity jurisdiction, or to provide a statutory injunction to be applied to acts and conditions ordinarily considered as being beyond equity interference.\u201d Fayetteville v. Distributing Co., 216 N.C. 596, 602, 5 S.E. 2d 838. Appellants cite no authority for the proposition that a temporary injunction may not issue to restrain a violation of a zoning ordinance pending a final adjudication upon the merits, or that the alleged violators are entitled to maintain the status quo, as a matter of right, until the action is terminated.\nThe verified pleadings and affidavits are sufficient to substantiate the court\u2019s findings of fact, and the findings of fact support the order continuing the temporary injunction.\nDefendants\u2019 motion was for a \u201csupersedeas bond.\u201d Supersedeas was not available in the trial court. \u201cSupersedeas\u201d is a writ issuing from an appellate court to preserve the status quo pending the exercise of the appellate court\u2019s jurisdiction, is issued only to hold the matter in abeyance pending review, and may be issued only by the court in which an appeal is pending. Seaboard Air Line R. Co. v. Horton, 176 N.C. 115, 96 S.E. 954. The trial court was without authority to issue writ of supersedeas. The purport of defendants\u2019 motion was for the dismissal or modification of the temporary injunction. G.S. 1-498. In the denial of the motion we find no error.\nThe Supreme Court issued a writ of supersedeas in this case, effective pending review. Upon the certification of this opinion to the Superior Court of Craven County the effect of this writ terminates.\nThe order appealed from is\nAffirmed.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "A. D. Ward for plaintiff.",
      "Charles L. Abernethy, Jr., for defendants."
    ],
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    "head_matter": "CITY OF NEW BERN, a North Carolina Municipal Corporation, v. ERSLE M. WALKER and wife, RUBY EPTING WALKER.\n(Filed 20 September, 1961.)\n1. Injunctions \u00a7\u00a7 4, 13; Municipal Corporations \u00a7 34\u2014\nWhere a temporary order restraining defendant from violating a zoning ordinance has been properly continued to the hearing on the merits, defendant is not entitled to stay the restraining order until the hearing on the merits even though he files bond.\n2. Appeal and Error \u00a7 13\u2014\nA supersedeas is a writ issuing solely from an appellate court to preserve the status quo pending the exercise of the appellate court\u2019s jurisdiction, and upon certification of opinion of the Supreme Court affirming the judgment of the lower court, the effect of the writ terminates.\nAppeal by defendants from Cowper, J., at Chambers 27 June 1961 in CRAVEN.\nPlaintiff seeks to permanently enjoin defendants in the alleged violation of a zoning ordinance of the City of New Bern. Plaintiff asserts that the feme defendant has a life estate in certain lots zoned as residential property, and that she and her husband are using the property as a commercial garage for the storage and repair of heavy equipment, particularly tractors and trailers.\nThe court issued a temporary injunction on 31 May 1961. Defendants thereafter filed motion and petition that the court \u201cmaintain the status quo and permit the giving of a supersedeas bond\u201d pending the final hearing on the merits. The motion was heard 27 June 1961, and the court entered an order denying defendants\u2019 motion and continuing the temporary injunction until the final determination of the action.\nDefendants appealed.\nA. D. Ward for plaintiff.\nCharles L. Abernethy, Jr., for defendants."
  },
  "file_name": "0355-01",
  "first_page_order": 393,
  "last_page_order": 394
}