Owen v. CLAUDE DE BRUHL AGENCY

86 S.E.2d 197 (1955)

241 N.C. 597

Dr. James E. OWEN and Eva B. Owen v. CLAUDE DE BRUHL AGENCY, Inc., and Claude DeBruhl, Personally.

No. 95.

Supreme Court of North Carolina.

March 9, 1955.

*198 McLean, Elmore, Martin & Gudger, Asheville, by Harry C. Martin, Asheville, for defendants, appellants.

J. W. Haynes, Asheville, for plaintiffs, appellees.

*199 HIGGINS, Justice.

The defendants insist the temporary restraining order issued without notice should have been dissolved because of the failure of the resident judge to give the defendants a hearing within 20 days as provided in G.S. § 1-490. The statute does not require a hearing within 20 days. It provides that no order for a period longer than 20 days shall be granted. It provides also, any order issued shall continue until vacated. The date fixed for the hearing in the order in question was within the 20-day period. However, due to death in the family of the judge two days before the hearing date, the judge notified counsel for the plaintiff and the Clerk Superior Court of Buncombe County he would not be able to hold the hearing as scheduled on the 12th. Neither the court, nor the clerk, nor plaintiffs' counsel notified defendants' counsel of the postponement. Up to that time the defendants had filed no pleadings, consequently no counsel appeared of record. Another hearing was scheduled for 20 November. However, on that date the judge was engaged in another hearing that consumed the entire day.

Finally, a hearing was held on 27 November, when all parties and counsel were present. The defendants filed motions to dismiss because of the court's failure to hold the hearing on the 12th, and upon the merits. Both motions were supported by affidavits. After the hearing, and presumably considering all matters presented, the judge continued the restraining order until the trial.

In this case, the court was amply justified in continuing the hearing scheduled for 12 November.

The defendants argue the purpose of this action is to try title to land and that the plaintiffs have an adequate remedy at law. They argue that the equitable remedy of relief by injunction is not available and the restraining order should be dissolved. In support of this position they cite Armstrong v. Armstrong, 230 N.C. 201, 52 S.E.2d 362; Whitford v. North Carolina Joint-Stock Land Bank, 207 N.C. 229, 176 S.E. 740; Jackson v. Jernigan, 216 N.C. 401, 5 S.E.2d 143. The defendants further argue that while the complaint may contain sufficient allegations which, if true, will support the temporary restraining order, yet "the attempted allegations by the plaintiff as to nuisance have been waived by their stipulation as to the case on appeal." The stipulation of counsel as appears in the record is silent on the question of the purpose of the action. What defendants' counsel evidently referred to as a stipulation is the defendants' statement in the case on appeal as follows: "This is a civil action instituted in the Superior Court of Buncombe County by the plaintiffs for trespass to try title upon the lands described in the complaint and for actual and punitive damages, together with a restraining order and order to show cause as appears of record." Plaintiffs' counsel agreed that the defendants' statement shall constitute the case on appeal. However, in the case on appeal, appears also the verified complaint, the affidavits, orders, etc. So, we have before us not only what the defendants say the case is about, but what the complaint and affidavits say it is about.

The allegations of the verified complaint are sufficient to support and warrant the temporary restraining order. As an answer to some of the allegations of the complaint, the defendant offered the affidavit to Mr. William DeBruhl who stated he was employed by the defendants to operate and manage their turkey shoots, which conformed to police requirements, and that only shotguns with skeet loads were used; and that the shooting did not affect or impair the operations of the airstrip.

After hearing and, so far as appears, considering all affidavits, the resident judge found the temporary order should be continued to the final hearing and entered an order accordingly. This order relates back to the findings and prohibitions of the original order and continues it in effect. The defendant argues that since the court in continuing the restraining order did not find any facts, that it is impossible for the defendants to point out wherein the order is *200 deficient, except to say that it contains no findings and that the objection to the order is the only method of attack left to them. Findings of fact were not required if the allegations of the complaint and supporting affidavits, if any, and the affidavits in opposition, if any, show facts sufficient to warrant and require a restraining order, the judge may properly issue it without further findings. This is so for the reason that even if the judge below were to find facts, the findings would not be conclusive on appeal. In determining whether a restraining order was properly issued, the Supreme Court may look into and review the evidence in order to determine on appeal whether the order was justified. Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452.

The defendants' exceptive assignments do not disclose error.

Affirmed.

BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.