No. 384.

131 S.E.2d 483 (1963)

259 N.C. 692

M.P. CARROLL, Edward M. Moody, and Edward Radford, Co-Partners, trading as Centre Warehouse No. 2 v. The WARRENTON TOBACCO BOARD OF TRADE, INCORPORATED.

Supreme Court of North Carolina.

June 14, 1963.

Attorney(s) appearing for the Case

Zollicoffer & Zollicoffer, Henderson, and Maupin, Broughton, Taylor & Ellis, Greenville, for plaintiff appellants.

John H. Kerr, Jr., Warrenton, and Blackburn & Blackburn, Henderson, for defendant appellee.

BOBBITT, Justice.

The only question for decision by Judge Williams at the hearing on September 6, 1962, was whether defendant should be restrained and enjoined pending the final determination of the action. Findings of fact made by the court at such hearing are not binding on the parties or even proper matters for consideration by the court or jury at the trial on the merits. Huskins v. Hospital, 238 N.C. 357, 362, 78 S.E.2d 116.

There was no waiver of jury trial. There was no demurrer to the complaint. There was no motion to dismiss other than the formal prayer in defendant's answer. Obviously, the agreement that the order might be signed "either in or out of term and either in or out of the District" referred to an order granting or denying plaintiffs' motion for an order restraining and enjoining defendant pending the final determination of the action.

It appears from Conclusion of Law (e), quoted in our preliminary statement, that Judge Williams based his judgment, in which the action was dismissed and plaintiffs were taxed with the costs, on findings of fact made by him.

No term of court was held in Warren County between the one week Criminal Term beginning September 3, 1962, and November 15, 1962, the date the judgment was filed with the clerk. The judgment was not signed and entered in term. In Mosteller v. R. R., 220 N.C. 275, 281, 17 S.E.2d 133, this statement appears: "It was proper to dismiss or dissolve the restraining order, but the dismissal of the action upon the hearing of the order to show cause is not approved by decisions relating to the present practice. Cox v. City of Kinston, 217 N.C. 391, 399, 8 S.E.2d 252, 258; Bynum v. Powe, 97 N.C. 374, 2 S.E. 170. Motions of that kind should be heard at term." See Moore v. Cooper Monument Co., 166 N.C. 211, 81 S.E. 170; Union Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E.2d 792. Teer v. Jordan, 232 N.C. 48, 59 S.E.2d 359, cited by defendant, is distinguishable on the ground, among others, that the judgment was entered in term.

Under the circumstances, the judgment, being erroneous and irregular, is vacated; and the cause is remanded for trial

Even so, without reference to the findings of fact made by Judge Williams, we are of opinion, and so hold, that plaintiffs were not entitled, pending the final determination of the action, to the restraining order they seek. Whatever the merits of plaintiffs' cause, Centre Warehouse No. 2 was a new warehouse; and, prior to the 1962 season, no sales had been conducted therein and no selling time had been allocated thereto. Thus, plaintiffs are not seeking to preserve the status quo. They are asserting rights they have not previously exercised. Although plaintiffs' prayer for relief, in part, is phrased in terms of restraining defendant, the relief plaintiffs seek pending the final determination of the action as well as upon its ultimate determination is a mandatory injunction requiring defendant to allocate selling time to Centre Warehouse No. 2 in accordance with plaintiffs' contention.

A mandatory injunction is comparable in its nature and function to a writ of mandamus. Board of Managers of James Walker Memorial Hospital v. City of Wilmington, 235 N.C. 597, 601, 70 S.E.2d 833.

A temporary restraining order is an ancillary remedy for the purpose of preserving the status quo or restoring a status wrongfully disturbed pending the final determination of the action. Seaboard Air Line R. R. v. Atlantic Coast Line R. R., 237 N.C. 88, 94, 74 S.E.2d 430, and cases cited. "As a rule such an order will not be made as a preliminary injunction, except where the injury is immediate, pressing, irreparable, and clearly established, or the party has done a particular act in order to evade an injunction which he knew had been or would be issued." McIntosh, North Carolina Practice and Procedure, § 851; Kingston Tobacco Board of Trade v. Liggett & Myers Tobacco Co., 235 N.C. 737, 740, 71 S.E.2d 21; Ingle v. Stubbins, 240 N.C. 382, 390, 82 S.E.2d 388, and cases cited.

If and when plaintiffs' legal rights are established in accordance with their contention by final judgment a mandatory injunction would be an appropriate remedy in the nature of execution to compel compliance with such judgment. McIntosh, op. cit., § 851.

In the light of these legal principles, plaintiffs are not entitled, pending the final determination of their legal rights, to a writ requiring defendant to allocate to Centre Warehouse No. 2 the selling time for which plaintiffs contend. In this connection, it is noted that the 1962 season had passed before November 15, 1962, the date said judgment was filed. The time is at hand for trial on the merits.

We have not overlooked plaintiffs' general exception to the order in which plaintiffs' motion to strike was denied in its entirety. In this connection, it is noted that plaintiffs' exception is broadside and ineffectual. Too, the discussion in plaintiffs' brief is general and is not directed specifically to any of the numerous portions of the answer referred to in plaintiffs' motion. Independent of these considerations, we do not perceive plaintiffs have been prejudiced by said order. Hence, Judge Williams' order of October 11, 1962, denying plaintiffs' said motion to strike, will not be disturbed.

As stated above, the judgment filed November 15, 1962, is vacated and the cause is remanded for trial.

Error and remanded.

MOORE, J., concurs in result.


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