
    JOHN SEIP et al. v. J. O. WRIGHT.
    (Filed 21 February, 1917.)
    1. Injunction — Issues of Fact.
    
      Semble, where judgment has been rendered that defendant deliver to plaintiff certain certificates of stock of original issue of a corporation or pay their par value, a tender of certificates not of the original issue would be insufficient; and where upon alleged default of defendant to deliver the certificates an execution for the payment of the money has been enjoined upon plea of tender, the injunctive remedy being the main issue, the injunction should be continued to the hearing so that the controverted fact of tender of the original certificates may be first determined by the jury.
    2. Same — Probable Cause.
    An injunction will be continued to the final hearing when a serious issue of fact is raised, or where no harm will be done to the defendant and great harm may be caused to the plaintiff, or it is reasonably necessary to protect his rights; or he has shown probable cause or that it can reasonably be seen that he will -be able to make out his case at the final hearing.
    3. Injunction — Appeal and Error — Evidence—Findings.
    Where on appeal in injunction proceedings it does not appear whether a material matter affecting the relief sought has not been presented to the lower court, or that it had been decided there adversely to the appellant, the Supreme Court may pass upon the question originally; but should it have been decided below the Supreme Court will not be disposed to change the ruling, in matters of fact, though it may do so in proper cases.
    -Í. Judgments, Consent — Out of Term — Computation of Time.
    Where a consent judgment is entered out of court and out of term, as of the previous term, requiring the defendant to deliver to the plaintiff certain certificates of stock “within sixty days after final judgment,” and if not done the plaintiff should recover the par value, the time within which the certificates are required to be delivered should be counted from the actual signing of the judgment, and not from the former term or the record entry of the judgment.
    Civil actioh from. Currituck, tried before Whedbee, J., upon a motion for an injunction against proceeding under an execution issued upon a judgment in a former action, entitled Wright v. Seip, which motion was heard in December, 1916. The injunction was granted and the defendant, J. 0. Wright, appealed.
    The former judgment directed that J. 0. Wright, plaintiff therein, recover from the Provident Land Company, one of the defendants therein, seventy-five shares of the original issue of $150,000 of its capital stock, of tbe par value of $100 per share, and tbat defendant deliver tbe stock to tbe plaintiff, and in tbe event tbat tbe defendant failed to deliver tbe stock “within sixty days after final judgment in said case, tbe plaintiff should recover of tbe said defendant and its codefendants in that case tbe sum of $7,500, tbe value of tbe stock as assessed by the jury. Costs were also adjudged against tbe defendants. Ey consent of tbe parties, “tbe judgment was signed out of tbe county and out of term, but was to be recorded and filed as of September Term, 1916.” Tbe court adjourned for tbe term on 8 September, 1916, and the judgment was signed on 29 September, 1916, and sent to tbe clerk of tbe court of Currituck County and was filed by him in tbe papers in tbe case on 30 September, 1916. It further appears tbat on 10 November, 1916, defendants in tbat action tendered to tbe plaintiffs therein certificate of stock No. 55 in tbe Provident Land Company for seventy-five shares, valued at $7,500, which tender was rejected by tbe plaintiff J. O. "Wright, upon tbe ground tbat tbe tender was not made in time, tbat is, within sixty days after judgment. This action was then brought by tbe defendants in tbat suit to restrain tbe plaintiffs (defendant herein) from proceeding under an execution which the clerk bad issued, at bis request, upon tbe judgment in tbe former case. Tbe court held tbat as tbe stock was tendered by tbe plaintiffs herein, tbe time of tbe tender was immaterial, and continued tbe restraining order to tbe bearing. Defendant appealed.
    
      Aydlett & Simpson for plaintiffs.
    
    
      Ehringhaus cfi Small and Thomas Ruffin for defendant.
    
   Waxkee, J".,

after stating tbe case: Tbe defendant contended in this Court, at tbe hearing, tbat tbe certificate of stock tendered by tbe plaintiffs in this suit under the judgment in' tbe other case was not for shares of tbe original issue of $150,000, described in tbe agreement of the parties to the judgment. If this position is open to tbe defendants, in tbe present state of tbe pleadings, proofs, findings, and judgment of tbe court, we would bold against him, in tbe absence of further proof showing tbat it was not a part of tbat issue of stock, for we think tbat tbe proof, as it now stands, tends to show tbat tbe stock is of tbat character. But if there is any doubt of it, tbe most tbat we can say for tbe defendant is tbat it is a controverted question and one for tbe jury to decide, ux3on tbe evidence, at tbe final bearing, tbe usual rule being tbat in such a case tbe injunction, if it is tbe main relief demanded, will be continued to tbe bearing, when tbe truth of tbe matter can be ascertained and justice more certainly and fully administered. Where it will not barm tbe defendant to continue tbe injunction, and may cause great injury to tbe plaintiff, if it is dissolved, tbe court generally will restrain tlie party until tbe bearing. McCorkle v. Brem, 76 N. C., 407; where serious questions were raised, Harrington v. Rawls, 131 N. C., 40; or where reasonably necessary to protect plaintiff’s rights, Heilig v. Stokes, 63 N. C., 612. The Court said, by Justice Bolee, in Tise v. Whitaker, 144 N. C., 508: “It is the rule with us that in actions of this character, the main purpose of which is to obtain a permanent injunction, if the evidence raises serious question as to the existence of facts which make for plaintiff’s right, and sufficient to establish it, a preliminary restraining order will be continued to the hearing.” Hyatt v. DeHart, 140 N. C., 270; Harrington v. Rawls, 131 N. C., 39; Whittaker v. Hill, 96 N. C., 2; Marshall v. Comrs., 89 N. C., 103. If thé plaintiff has shown probable cause or it can reasonably be seen that he will be able to make out his case at the final hearing, the injunction will be continued, is another way of stating the rule. Cobb v. Clegg, 137 N. C., 153; Moore v. Fowle, 139 N. C., 51; Bynum v. Wicker, 141 N. C., 95; Craycroff v. Morehead, 67 N. C., 422; Erwin v. Morris, 137 N. C., 48. The judge held either that the question was not raised before him as to the character of the stock tendered by the plaintiff in this action, or that it was a part of the original issue of stock. If he did so decide, we would not be disposed to change his ruling upon this record, although we have the power to do so, or to find the facts originally in cases like this one. On a similar question, in Hyatt v. DeHart, 140 N. C., 270, the Chief Justice said: “Ordinarily, the findings of fact by the judge below are conclusive on appeal. While this is not true as to injunction cases, in which we look into and review the evidence on appeal, still there is the presumption always that the judgment and proceedings below are correct, and the burden is upon the appellant to assign and show error; and looking into the affidavits in this case, we cannot say there was error below. The general rule is that when the injunctive relief sought is not merely ancillary to the principal relief demanded in the action, but is itself the main relief, the court will not dissolve the injunction, but will continue it to the hearing,” citing Marshall v. Comrs., 89 N. C., 103. What we have said here will not prevent the defendant from having this question passed upon at the final hearing, if there is any dispute about the fact.

As to the other matter, we are of the opinion that the time within which the delivery or tender of the stock was required to be made should be counted, at the earliest, from the signing of the judgment. That was plainly the intention of the parties. The provision is that the stock should be issued to the defendant in this action “within sixty days after final judgment,” and if not done, he should recover the $7,500. There was no final judgment until the judge signed it under the agreement of the parties, although it was to be filed and recorded as of September term. This is usually inserted in such judgments, but it was not intended thereby to shorten the time within which the tender could be made. The time elapsing between 8 September and 29 September, 1916, cannot be counted against the plaintiffs herein, because there was no judgment during that time, but merely an agreement that a judgment should be entered after the court had adjourned, the terms of which were not even fixed. If the judge had signed the judgment on the sixtieth day after the adjournment, there would have been, under defendant’s contention, no time left for the tender, and it cannot be supposed that it was the purpose to destroy the plaintiffs’ right of tender by the mere fiction of having the judgment filed and recorded as of the term. Besides, the provision for the delivery of the stock was inserted in the judgment signed on 29 September, 1916, and it would not be a reasonable view that it was intended to deduct twenty-three days already past from the sixty days then allowed in the judgment. It was easy to say that the tender should be made within sixty days after the adjournment of court, if that was the agreement, and the other expression was used to indicate that the running time should start from the actual date of signing the judgment instead of the fictitious date by relation to the September term of court. This is the fair and equitable view, we think, and is the natural and reasonable construction of the stipulation in the judgment. The object in having the judgment filed and recorded as of the term was to give it the form of regularity, rather than to curtail the stipulated time for tendering the stock. “The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict, the entry of it being a ministerial act which consists in spreading it upon the record.” 23 Cyc., 835. The distinction between the rendition of a final judgment and the recording of it is clearly stated and applied in Uhe v. R. R., 57 N. W. Rep., 484, 489, and in Blatchford v. Newberry, 100 Ill., at p. 489. The clause in the judgment under consideration, as to the time of delivering the stock, refers to the date when the judgment was actually rendered, and not to the date of recording it. It is difficult to conclude that the parties intended otherwise and that the time expired, before the judgment was given, should be counted.

The result is that there was no error in the decision of the court.

Affirmed.  