The opinion
Hoxe, J.
Tbe facts in evidence as they now appear of record are fully sufficient to support and justify tbe conclusions of tbe trial judge. As to tbe proper formation of tbe school district in question, tbe legality of tbe election and proposed bond issue and tax levy to provide for same, and tbe lawful selection of tbe proposed school site as contemplated by tbe authorities in control of tbe matter, and tbe judgment dissolving tbe injunction must be upheld. But we think bis Honor went beyond tbe powers conferred upon him in undertaking to make a final determination of tbe rights of tbe parties, and adjudging that defendants “go without day.” Except where tbe facts are agreed upon or admitted for tbe purpose, such a judgment in a case of this kind may only be bad at tbe final bearing and on tbe facts as they may be then fixed and established. This was virtually held in the recent case of
Davenport v. Board of Education,
183 N. C., 570 , and tbe ruling is in accord with the prevailing decisions on the subject.
Galloway v. Board of Education, ante,
245;
Davenport v. Board of Education, supra; Moore v. Monument Co.,
166 N. C., 211 .
This will be certified that tbe judgment of tbe lower court be modified in accordance with this opinion.
Modified.