Tallevast v. Kaminski , 146 S.C. 225 ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] June 13, 1928. The opinion of the Court was delivered by The purpose of this action, instituted in the Court of Common Pleas of Georgetown County, was to obtain a permanent restraining order against the defendants, as to the matters set forth in the complaint. In view of the full and clear agreed statement of the case appearing in the transcript, we adopt the same as the statement of the Court, namely:

"This action was commenced by plaintiff on behalf of himself and all other taxpayers of the County of Georgetown who may come in and contribute to the expense of this action, for the purpose of enjoining and restraining the defendants from the further expenditure of funds for purposes which the plaintiff alleges the defendants had no authority to borrow the same for. Plaintiff asks to have the action of the defendants in borrowing said money and pledging the credit of Georgetown County for the repayment thereof declared illegal and without warrant of law. On the verified complaint his Honor, Judge S.W.G. Shipp, on the 18th day of June, 1927, issued a rule to show cause and restraining order whereby the defendants were required to appear before his Honor in Florence, S.C. on July 1, 1927, and show cause why they should not be restrained and prohibited from using, expending, or causing to be used or expended said funds for and on account of the purposes and things set forth in the complaint. The summons and complaint, and the restraining order and rule to show cause, were served on the defendants on the 20th day of June, 1927. Thereafter the defendants served on plaintiff's attorneys an answer, demurrer, return to the rule to show cause, notice of motion to dissolve the said restraining order, and affidavits. On the hearing of said motion before his Honor, Judge S.W.G. Shipp, on the 30th day of June, 1927, Judge Shipp issued his order dated July 1, 1927, filed on the 2d day of July, 1927, dissolving said restraining order. Thereupon, and within 20 days after service of the original summons and complaint, plaintiff presented to Judge Shipp an amended complaint with affidavits and exhibits attached, and upon such amended complaint with affidavits and exhibits Judge Shipp granted a rule to show cause and restraining order, whereby the defendants were required to appear before his Honor in Myrtle Beach, S.C. on July 15, 1927, and show cause why they should not be enjoined as prayed. The amended summons and complaint and the restraining order and rule to show cause were served on the defendants on the 9th day of July, 1927. The defendants in due time served on plaintiff their return to the rule to show cause together with various affidavits. On hearing the return of the defendants, together with reply affidavits and exhibits submitted by the plaintiff, his Honor, Judge Shipp, issued his order dated July 18, 1927, dissolving said restraining order."

From the orders issued by his Honor, Judge Shipp, dissolving the temporary restraining orders, discharging the rule, and refusing the injunction prayed for, the plaintiff has appealed to this Court, imputing error to his Honor, Judge Shipp, as alleged in the several exceptions.

In his consideration of the case Judge Shipp goes thoroughly into the questions raised, and gives an interesting, clear, and able discussion of the facts and law involved. After a careful study, we agree with the conclusion reached by him, and for the reasons assigned the appellant's exceptions are overruled.

It is therefore the judgment of this Court that the orders appealed from be, and are hereby, sustained, and the judgment of the Circuit Court affirmed.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE, and STABLER concur.