Whaley v. Broadway Taxi Company , 252 N.C. 586 ( 1960 )

114 S.E.2d 254 (1960) 252 N.C. 586

William E. WHALEY, and William E. Whaley, Jr., a Partnership, d/b/a William E. Whaley Company,
v.
BROADWAY TAXI COMPANY, Inc.

No. 671.

Supreme Court of North Carolina.

May 18, 1960.

Haywood & Denny, Durham, for plaintiffs, appellants.

Hofler & Mount, Durham, for defendant, appellee.

PARKER, Justice.

Plaintiffs contend Judge Hobgood erred in denying their motion for an interlocutory injunction until the final determination of the action, and erred in dismissing the action and taxing them with the costs. Defendant contends Judge Hobgood treated the show cause order as a motion for a permanent injunction, and correctly denied the motion for an injunction, and correctly dismissed the action and taxed plaintiffs with the costs.

Judge Hobgood heard this matter "upon the motion of the plaintiffs for an injunction and return of the order to show cause." The show cause order states that defendant was to appear, and "show cause, if any there be, why the injunction as prayed for by the plaintiffs should not be granted until the final determination of this action." The hearing before him was only for that one purpose, and that was whether or not an interlocutory injunction should be issued. Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715. He heard the matter upon the pleadings alone, and found no facts. It seems manifest from the record that Judge Hobgood's judgment denying the motion for a restraining order was merely the denial of a motion for an interlocutory injunction until the final determination of the action.

This Court said in Huskins v. Yancey Hospital, Inc., 238 N.C. 357, 78 S.E.2d 116, 119: "The purpose of an interlocutory injunction is to preserve the status quo of the subject matter of the suit until a trial can be had on the merits. * * * The hearing judge does not issue an interlocutory injunction as a matter of course merely because the plaintiff avowedly bases his application for the writ on a recognized equitable ground. While equity does not permit the judge who hears the application to decide the cause on the merits, it does require him to exercise a sound discretion in determining whether an interlocutory injunction should be granted or refused."

In Meccano, Limited v. John Wanamaker, 253 U.S. 136, 40 S. Ct. 463, 465, 64 L.Ed 822, the Court said: "The correct general doctrine is that whether a preliminary injunction shall be awarded rests in sound discretion of the trial court. Upon appeal, an order granting or denying such an injunction will not be disturbed, unless contrary to some rule of equity, or the result of improvident exercise of judicial discretion." To the same effect: Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834; Sinclair Refining Co. v. Midland Oil Co., 4 Cir., 55 F.2d 42; 28 Am.Jur., Injunctions (1959 Ed.) p. 530; 43 C.J.S. Injunctions § 14.

It seems from the pleadings that if an interlocutory injunction had been issued, it would have caused defendant to breach an admitted contract it had with other persons for displaying advertising on its taxicabs in order to enforce a contract between plaintiffs and defendant, which defendant avers it lawfully terminated, before a final determination of the action upon its merits. Appellants have not shown that the denial of their motion for an interlocutory injunction was "contrary to some rule of equity, or the result of improvident exercise of judicial discretion." That part of Judge Hobgood's judgment refusing an interlocutory injunction is affirmed.

Costs follow the final judgment. Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923; Zebulon v. Dawson, 216 N.C. 520, 5 S.E.2d 535. Judge Hobgood's judgment in taxing plaintiffs with the costs of the action seems to indicate that he dismissed plaintiffs' action. The statement of the case on appeal agreed to by counsel states Judge Hobgood dismissed the action. It was error to dismiss the action, and tax plaintiffs with the costs. So much of the judgment as dismisses the action and taxes plaintiffs with the costs is vacated, and the cause is remanded with direction it be reinstated upon the civil issue docket for trial. Mosteller v. Southern R. Co., 220 N.C. 275, 17 S.E.2d 133. See Adams v. Flora Macdonald College, 247 N.C. 648, 101 S.E.2d 809, where it is held that where the complaint in an action for a restraining order contains a defective statement of a good cause of action, judgment sustaining a demurrer should have dissolved the restraining order, but the portion of the judgment dismissing the action and taxing plaintiffs with the costs was reversed. The taxing of plaintiffs with the costs was premature.

As to the portion of the judgment denying the motion for an interlocutory injunction affirmed; as to the part of the judgment dismissing the action and taxing plaintiffs with the costs reversed.