Everette v. Taylor

335 S.E.2d 212 (1985)

Dixie Whitehurst EVERETTE v. Joseph Junior TAYLOR.

No. 853SC163.

Court of Appeals of North Carolina.

October 15, 1985.

*214 Battle, Winslow, Scott & Wiley by Robert L. Spencer and V. Elaine Cohoon, Rocky Mount, for plaintiff-appellant.

Howard, Browning, Sams & Poole by Myron T. Hill, Jr., Greenville, for defendant-appellee.

ARNOLD, Judge.

The plaintiff first contends the court erred in granting a permanent injunction when the only matter before the court was a hearing on whether to extend the temporary restraining order. We agree and vacate the permanent injunction.

It is apparent from the court's order that it has finally and absolutely determined adversely to plaintiff the issue regarding whether proper service was obtained against Joseph Taylor and the issue whether plaintiff should be barred from proceeding under this judgment against the person who admitted he caused the accident in question. A permanent injunction may only be issued after a full consideration of the merit of these issues. A judge conducting a hearing to determine whether a temporary restraining order should be continued as a preliminary injunction pursuant to Rule 65 of the Rules of Civil Procedure has no jurisdiction to determine a controversy on its merits. Shishko v. Whitley, 64 N.C.App. 668, 308 S.E.2d 448 (1983). See also Patterson v. Hosiery Mills, 214 N.C. 806, 200 S.E. 906 (1939). Neither can the parties to an action confer this jurisdiction upon the trial court by granting consent to such a hearing. MacRae & Co. v. Shew, 220 N.C. 516, 17 S.E.2d 664 (1941). Thus, it was error for the court to issue a permanent injunction at a hearing to show cause why a temporary restraining order should not be continued. MacRae & Co. v. Shew, 220 N.C. 516, 17 S.E.2d 664 (1941). Because of this error, the order appealed from is vacated and the case is remanded to the trial court.

Vacated and remanded.

WELLS and MARTIN, JJ., concur.