City of New Bern v. Walker

Annotate this Case

121 S.E.2d 544 (1961)

255 N.C. 355

CITY OF NEW BERN, a North Carolina Municipal Corporation, v. Ersle M. WALKER and wife, Ruby Epting Walker.

No. 105.

Supreme Court of North Carolina.

September 20, 1961.

*545 A. D. Ward, New Bern, for plaintiff.

Charles L. Abernethy, Jr., New Bern, for defendants.


In 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.

"* * * G.S. § 160-179 expressly authorizes the use of the injunctive power of the court to enjoin violations of zoning ordinances." City of Raleigh v. Morand, 247 N.C. 363, 366, 100 S.E.2d 870, 872. "There 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." City of Fayetteville v. Spur Distributing Co., 216 N.C. 596, 602, 5 S.E.2d 838, 842. 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.

The verified pleadings and affidavits are sufficient to substantiate the court's findings of fact, and the findings of fact support the order continuing the temporary injunction.

Defendants' motion was for a "supersedeas bond." Supersedeas was not available in the trial court. "Supersedeas" is a writ issuing from an appellate court to preserve the status quo pending the exercise *546 of the appellate court's 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' 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.

The 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.

The order appealed from is