Opinion
12475
June 28, 1928.
Before SEASE, J., Anderson, September, 1927. Affirmed.
Suit by Ophelia C. Norris, Trustee of the Estate of Mary C. Clinkscales, deceased, and others, against D.O. Brown, Receiver of the People's Bank of Anderson, W.H. Tucker, and others. From an order dissolving a temporary restraining order or injunction, plaintiffs appeal.
The order of the lower Court is as follows:
"This matter comes before the Court on motion of W. H. Tucker, supported by affidavits, herewith filed, and the records in a former action and in an action now pending before this Court, to dissolve an injunction issued by this Court on the 9th day of September, 1927, without notice, on the verified complaint in the action, against the said W.H. Tucker, restraining and enjoining him from taking any further steps to sell or dispose of a certain tract of land covered by the lien of a mortgage executed and delivered by Mary C. Clinkscales to J.S. Moffatt in an action now pending in this Court brought by W.H. Tucker against the plaintiffs in this action and others for the foreclosure of the mortgage. Due notice of the motion was given.
"After hearing the affidavits, records, and argument of counsel in support of the motion and the verified complaint and argument of counsel in opposition to the motion, and it appearing therefrom to the Court that the motion should be granted, now, on motion of Hood Hood, attorneys for W.H. Tucker, it is ordered that the injunction issued herein on the 9th day of September, 1927, by this Court against W.H. Tucker, restraining and enjoining him from taking any further steps to sell or dispose of the aforesaid tract of land under the foreclosure proceedings now pending before this Court, be, and the same hereby is, dissolved, and the order of injunction is hereby vacated."
Mr. L.D. Jennings, for appellants, cites: Liability of director for mismanagement of corporate property both several and joint: 82 S.C. 287; 15 Ency. P. Pr., 71; 10 Cyc., 826; 1 Morse on Banks and Banking (5th Ed.), 127. "Director": 14 A.C.J., Paragraphs 1866, 1869, 1883, 1891; 39 Cyc., 247. Degree of care due: 101 S.E., 749; 1 Michie on Banks and Banking, 267, 337; 3 R.C. L., 460, 458; 128 S.E., 616; 7 Cyc., 788; 7 C.J., 563; 64 Or., 433; 15 L.R.A., 316. Cases distinguished: 133 S.C. 446; 7 C.J., 565; 50 A.L.R., 446; 3 DeS., 251; 115 S.C. 415; 27 S.C. 408; 32 C.J., 29; 139 S.C. 212.
Messrs. Hood Hood, for respondents, cite: Sole duty of director is to corporation: 133 S.C. 440; 7 C.J., 565; 50 A.L.R., 462. Granting of injunction discretionary with lower Court: 115 S.C. 415; 27 S.C. 408; 32 C.J., 29, 31; 120 S.C. 381. As to equitable injunction: 83 S.C. 444; 32 C.J., 110, 114; 1 Rich. Eq., 477; 134 S.C. 373; 4 S.C. 45; 9 S.C. 281.
June 28, 1928. The opinion of the Court was delivered by
This is an appeal from an order of his Honor. Judge Sease, dissolving a temporary restraining order or injunction issued by him September 9, 1927. Let the order of Judge Sease be reported.
Under the view which we take of the case, it is unnecessary to recite at length the facts. The granting or refusing an injunction rests within the sound discretion of the Circuit Judge. Frederick v. Brown, 115 S.C. 415; 106 S.E., 31. Pelzer v. Hughes, 27 S.C. 408; 3 S.E., 781. Cooper v. Boylston, 120 S.C. 381; 113 S.E., 347; 32 C. J., p. 29, et seq. Appellants have failed to satisfy this Court that his Honor, the Circuit Judge, erroneously exercised his discretion in dissolving the temporary injunction.
The judgment of this Court is that the order appealed from be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN and CARTER concur.
MR. JUSTICE STABLER did not participate.