Ray G. REGISTER and wife, Elizabeth B. Register
v.
Joseph M. GRIFFIN, Trustee, and Piedmont Production Credit Association.
No. 6926SC387.
Court of Appeals of North Carolina.
November 19, 1969.*521 Clayton, Lane & Helms by Thomas G. Lane, Jr., Charlotte, for plaintiff appellants.
Griffin & Gerdes by Joseph M. Griffin, Charlotte, for defendant appellees.
MALLARD, Chief Judge.
The 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 "Conclusions," 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.
"Upon an appeal from an order granting or refusing an interlocutory injunction, *522 the findings of fact, as well as the conclusions of law, are reviewable by this Court." Deal v. Enon Sanitary District, 245 N.C. 74, 95 S.E.2d 362 (1956); Dilday v. Beaufort County Board of Education, 267 N.C. 438, 148 S.E.2d 513, 149 S.E.2d 345 (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. Western Conference of Original Free Will Baptists of North Carolina v. Creech and Teasley v. Creech and Western Conference of Original Free Will Baptists of North Carolina v. Miles, 256 N.C. 128, 123 S.E.2d 619 (1962).
Costs usually follow a final judgment. Whaley v. Broadway Taxi Co., 252 N.C. 586, 114 S.E.2d 254 (1960).
No evidence appears in the record to support the finding of fact appearing in the order that "(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."
"The costs incident to a reference, including the referee's fee, are taxable in the discretion of the court." 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.
Attorney fees, costs of advertising, and costs of reference are usually considered as elements of damages. 43 C.J.S. Injunctions § 315. In general, there are two situations in which damages may be assessed in consequence of the issuance of an injunction.
1. "A final decision that an injunction was wrongfully obtained usually is a condition precedent to the assessment of damages in the injunction suit." 43 C.J.S. Injunctions § 285.
2. "The 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." 43 C.J.S. Injunctions § 307.
McCormick states the "`(p)rinciple' that counsel fees and other expenses, beyond taxable costs, in lawsuits generally are not recoverable." He further states: "In the great majority of the states, however, attorneys' 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." McCormick on Damages, § 109.
Generally, 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 "(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." 43 C.J.S. Injunctions § 281.
The court on this hearing had no jurisdiction to hear and determine the controversy on its merits. Patterson v. Durham Hosiery Mills, 214 N.C. 806, 200 S.E. 906 (1939); Union Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E.2d 792 (1960). The only questions presented to the trial judge *523 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.
"When 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." McIntosh, N.C. Practice 2d, § 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's undertaking pursuant to G.S. § 1-496 is to assure that a defendant will be able to recover such damages "as 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." McIntosh, N.C. Practice 2d, § 2214. The court protects a plaintiff's rights by the issuance of the restraining order and protects a defendant's rights in determining the amount of the bond required.
The 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 "Conclusions," and as thus modified the order is affirmed.
Modified and Affirmed.
MORRIS and HEDRICK, JJ., concur.