The opinion
The appeal from the order of Judge Bragaw presents the question of the right of a party to renew his motion for a restraining order, upon substantially the same facts presented on his first application, and after he has appealed from the first order.
(3) The denial of a motion for a restraining order for want of some material averment or because the evidence is insufficient does not prevent the renewal of the motion ( Halcombe v. Commissioners , 89 N.C. 346 ), but it has been uniformly held in this Court that the motion cannot be made on the same facts after an appeal from the first order. Jones v. Thorne , 80 N.C. 72 ; Pasour v. Lineberger , 90 N.C. 161 ; Penniman v. Daniel , 91 N.C. 431 ; Green v. Griffin , 95 N.C. 50 ; Henry v. Hilliard , 120 N.C. 487 ; Combes v. Adams , 150 N.C. 70 . *Page 3
In the last case cited, which was an appeal from an order denying a second motion for a restraining order, after an appeal from the first order, Justice Hoke says: "While the Court has held that an appeal from an interlocutory order leaves the action for all other purposes in the court below, the decision is also to the effect that the disposition of the interlocutory order and all questions incident to and necessarily involved in the ruling thereon are carried by the appeal to the appellate court, and the judge below therefore had no power to entertain or act upon appellant's motion."
We are, therefore, of opinion there is error.
Reversed.
BROWN, J., did not sit.