Delmar Studios of the Carolinas, Inc. v. Goldston

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105 S.E.2d 277 (1958)

249 N.C. 117


No. 254.

Supreme Court of North Carolina.

October 29, 1958.

*279 E. K. Powe, Durham, for defendant, appellant.

Helms, Mulliss, McMillan & Johnston, Wm. H. Bobbitt, Jr., Charlotte, for plaintiff, appellee.

DENNY, Justice.

The question for determination on this appeal is whether or not the court below committed error in continuing the temporary restraining order until the final determination of the action on its merits.

The defendant's assignments of error numbered 1 through 8 are based on similarly numbered exceptions to the refusal of the court below to find facts as requested by the defendant. These assignments of error are without merit and are, therefore, overruled.

Assignments of error numbered 9 through 15 are based on like numbered exceptions to the court's findings of fact numbered 1, 2, 3, 5, 6, 8 and 9, while assignment of error numbered 16 is based on an exception to the signing of the order continuing the temporary restraining order to the final hearing.

There is ample evidence to support the findings of fact challenged by the defendant's exceptions and assignments of error. Hence, they are overruled.

In Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80, 82, Walker, J., speaking for the Court, in pointing out the distinction between the old forms of common and special injunctions, said: "If the facts constituting the equity were fully and fairly denied, the injunction was dissolved, unless there was some special reason for continuing it. Not so with a special injunction, which is granted for the prevention of irreparable injury, when the preventive aid of the court of equity is the ultimate and only relief sought, and is the primary equity involved in the suit. In the case of special injunctions the rule is not to dissolve upon the coming in of the answer, even though it may deny the equity, but to continue the injunction to the hearing, if there is probable cause for supposing that the plaintiff will be able to maintain his primary equity, and there is a reasonable apprehension of irreparable loss unless it remains in force, or if, in the opinion of the court it appears reasonably necessary to protect the plaintiff's right until the controversy between him and the defendant can be determined. It is generally proper, when the parties are at issue concerning the legal or equitable right, to grant an interlocutory injunction to preserve the right in statu quo until the determination of the controversy, and especially is this the rule when the principal relief sought is in itself an injunction, because a dissolution of a pending interlocutory injunction, or the refusal of one, upon application therefor in the first instance, will virtually decide the case upon its merits, *280 and deprive the plaintiff of all remedy or relief, even though he should be afterwards able to show ever so good a case." Scott v. Gillis, 197 N.C. 223, 148 S.E. 315; Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319; Roberts v. Town of Cameron, 245 N.C. 373, 95 S.E.2d 899.

We think, in light of the facts found by the court below, the plaintiff was entitled to have the temporary restraining order continued until the final hearing as a matter of law, and we so hold.

The judgment of the court below is


PARKER, J., not sitting.

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