Currin v. Smith

153 S.E.2d 821 (1967)

270 N.C. 108

Barbara F. CURRIN and B. H. Currin v. Hobart C. SMITH, G. C. (Bob) Smith, Jr., Hidden Valley Builders, Inc., a corporation, and Hobart Smith Construction Company, a corporation.

No. 278.

Supreme Court of North Carolina.

April 12, 1967.

*822 Don Davis and Beverly H. Currin, Charlotte, for plaintiffs.

Levine, Goodman & Murchison, Charlotte, for defendants.

PER CURIAM.

G.S. § 1-500 provides:

"Restraining orders and injunctions in effect pending appeal; indemnifying bonds.Whenever a plaintiff shall appeal from a judgment rendered at chambers, or in term, either vacating a restraining order theretofore granted, or denying a perpetual injunction in any case where such injunction is the principal relief sought by the plaintiff, and where it shall appear that vacating said restraining order or denying said injunction will enable the defendant to consummate the threatened act, sought to be enjoined, before such appeal can be heard, so that the plaintiff will thereby be deprived of the benefits of any judgment of the Supreme Court, reversing the judgment of the lower court, then in such case the original restraining order granted in the case shall in the discretion of the trial *823 judge be and remain in full force and effect until said appeal shall be finally disposed of: Provided, the plaintiff shall forthwith execute and deposit with the clerk a written undertaking with sufficient surety, approved by the clerk or judge, in an amount to be fixed by the judge to indemnify the party enjoined against all loss, not exceeding an amount to be specified, which he may suffer on account of continuing such restraining order as aforesaid, in the event that the judgment of the lower court is affirmed by the Supreme Court." (Emphasis ours)

The dissolution of the restraining order was in the discretion of the trial judge. Such order is not reviewable by this Court except in cases of abuse of discretion. This record reveals no abuse of discretion on the part of the trial judge. G.S. § 1-500; Clark v. McQueen, 195 N.C. 714, 143 S.E. 528.

"* * * Ordinarily, an appeal will lie only from a final judgment. Perkins v. Sykes, 231 N.C. 488, 57 S.E.2d 645. An appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment." Steele v. Moore-Flesher Hauling Co., 260 N.C. 486, 133 S.E.2d 197.

Plaintiffs seek monetary damages, and should they be entitled to the additional equitable relief, there will be no injury to appellants if not granted before final judgment, since, if it is determined that the dwelling violates restrictive covenants, plaintiffs would have a remedy of mandatory injunction to compel defendants to conform the structure to the covenants. Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388.

For reasons stated, plaintiffs' appeal is

Dismissed.