Injunction — Trespass — Cutting Timber — Injunction Bond.
1. An allegation, in an action for an injunction, that defendant is insolvent and is cutting down timber trees on plaintiff's land and hauling them off and threatens to continue to do so, to the irreparable damage of the plaintiff, is sufficient, if true, to authorize an injunction and the appointment of a receiver.
2. Since the enactment of chapter 401, Acts of 1885, it is not necessary to allege the insolvency of the defendant in an application for an injunction when the trespass is continuous in its nature or consists in the cutting or destruction of timber trees.
3. A restraining order issued without a bond from plaintiff, as required by section 341 of The Code, is irregular, but not void.
4. Although a bond in an application for a restraining order is mandatory, the irregularity in the writ without bond is cured by the subsequent execution of a proper undertaking, which will be allowed, even in this court.
CLARK, J.
The allegation that the defendant is insolvent and is cutting down timber trees on plaintiff's land and hauling them off, and threatens to continue to do so, to the irreparable damage of the plaintiff, is sufficient, if true, to authorize an injunction to issue, and the appointment of a receiver. Dunkart v. Rhinehart, 87 N.C. 224; Lumber Co. v. Wallace, 93 N.C. 22. Indeed, it is not now necessary to allege insolvency in such case. Ousby v. Neal, 99 N.C. 146; Acts 1885, ch. 401. There is no allegation or exception that the defendant tendered the bond authorized by Acts 1885, ch. 94; Lewis v. Lumber Co., 99 N.C. 11; besides, the act vests the acceptance of such bond from the defendant in the discretion of the Court.
It is true, the restraining order should not have issued without filing the undertaking required by The Code, sec. 341, but this renders the order irregular, not void. Sledge v. Blum, 63 N.C. 374. The subsequent granting of the injunction to the hearing upon the execution of a proper bond renders it now of no import that the restraining order was irregularly granted, without the preliminary bond. While the bond is mandatory, if the plaintiff offers to supply it this will be allowed even in this court. James v. Withers, 114 N.C. 474; Miller v. Parker, 73 N.C. 58, 60.
No error.
Cited: Kistler v. Weaver, 135 N.C. 390; Yount v. Setzer, 155 N.C. 217.
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