Hutchins v. Stanton , 23 N.C. App. 467 ( 1974 )

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209 S.E.2d 348 (1974) 23 N.C. App. 467
John HUTCHINS
v.
Cornelia C. STANTON et al.
No. 7415DC653.
Court of Appeals of North Carolina.
November 6, 1974.
*349 Frederick J. Sternberg, Graham, for plaintiff-appellee.

Dalton & Long by W. R. Dalton, Jr., Burlington, for defendants-appellants.

MORRIS, Judge.

Defendants except to several of the trial judge's findings of fact and conclusions of law and contend that entry of the order appealed from constitutes error. We find merit in these contentions.

There is absolutely no evidence in the record to support some of the findings of the trial judge. Moreover even without reference to the findings of fact made by the trial judge, the order entered must be vacated.

"The primary purpose of a temporary restraining order is usually to meet an emergency when it appears that any delay would materially affect the rights of a plaintiff." Register v. Griffin, 6 N.C.App. 572, 575, 170 S.E.2d 520, 523 (1969). It is only an ancillary remedy for the purpose of preserving the status quo or restoring a status wrongfully disturbed pending the final determination of the action. R. R. v. R. R., 237 N.C. 88, 74 S.E.2d 430 (1952), and cases cited. It is not a cause of action or a lawsuit in and of itself. Lynch v. Snepp, 350 F.Supp. 1134, 1140 (W.D.N.C.1972), rev'd on other grounds, 472 F.2d 769 (4th Cir. 1973). The assumption is that a plaintiff seeking a temporary restraining order or a preliminary injunction eventually wants permanent relief. North Carolina practice and procedure contemplates that an application for a temporary restraining order will be followed very quickly by notice to the defendant and a hearing on the *350 preliminary injunction motion. After this, it is contemplated that the case finally will be resolved after a full scale hearing. Yet in this case there is no prayer for final relief. Plaintiff's complaint, even as amended, only seeks interim relief. He apparently expects this action to end when the temporary injunction is granted. As we have noted, there has to be an action pending to which the temporary injunction can be ancillary. No such action exists here, and for this reason, among others, we find it was error to enter the order appealed from. The temporary injunction granted in this case cannot be made ancillary to either a processioning proceeding to be brought in the future by a person not a party to this action or a continuance of this action for a permanent injunction when, as here, it is beyond the scope of the pleadings. Both the temporary restraining order and the order granting plaintiff a temporary injunction are vacated.

It appears that defendants by answer moved for dismissal of the action. This motion apparently has not been considered by the court. The matter is remanded for the court's consideration of this motion and entry of an order thereon.

Orders are vacated and the matter remanded.

BROCK, C. J., and MARTIN, J., concur.