Lambe v. Smith , 11 N.C. App. 580 ( 1971 )

181 S.E.2d 783 (1971) 11 N.C. App. 580

Elizabeth P. LAMBE
v.
Neal SMITH and wife, Maggie Smith.

No. 7119SC230.

Court of Appeals of North Carolina.

June 23, 1971.

Ottway Burton, Asheboro, for plaintiff appellant.

Charles H. Dorsett, Troy, for defendant appellees.

MALLARD, Chief Judge.

Defendant's motion to dismiss this appeal on the grounds that the evidence in the record on appeal is presented in question and answer form rather than by narrative is denied. This court, in its discretion under Rule 19(d) of the Rules of Practice in the Court of Appeals, heard the appeal and considered the matter on its merits.

Under G.S. 1A-1, Rule 65(a) and (b), a distinction is made between a "temporary restraining order" and a "preliminary injunction". The former may be issued without notice under the detailed procedural provisions set forth in Rule 65(b), but the latter may only be issued after notice to the adverse party and a hearing. Both, however, serve the same function as explained in 7 Moore's Federal Practice, § 65.05 (2d Ed. 1970):

"* * * The ex parte restraining order is * * * subject to definite time limitations, and is to preserve the status quo until the motion for a preliminary injunction can, after notice, be brought on for hearing and decision.

A preliminary or interlocutory injunction, on the other hand, can only be issued after notice and a hearing, which affords the adverse party an opportunity to present evidence in his behalf; and usually is not for a fixed, limited period of time, since ordinarily its purpose is to preserve the status quo until the issues are adjudged after a final hearing."

It is interesting to note that the 10-day temporary restraining order was signed by Judge McConnell on 14 October 1970 and expired on 24 October 1970. There is nothing in the record extending the order under Rule 65(b), and yet on 29 October 1970 Judge Long signed an order which decreed "(t)hat the temporary restraining order heretofore granted by the Honorable John D. McConnell, on the 14th day of October, 1970, is dismissed." This dismissal had no effect since the temporary restraining order of 14 October 1970 was defunct after the 10-day period.

The decision of the trial judge to grant or deny a preliminary injunction rests in his sound judgment and discretion. Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319 (1953); Branch v. Board of Education, 230 N.C. 505, 53 S.E.2d 455 (1949); Register v. Griffin, 6 N.C.App. 572, 170 S.E.2d 520 (1969); Holzer v. United States, 244 F.2d 562 (8th Cir. 1957); 3 Barron & Holtzoff, Federal Practice & Procedure, § 1433 (Wright Ed. 1958); 7 Moore's Federal Practice, § 65.18(3) (2d Ed. 1970). Plaintiff has not shown an abuse of discretion in the denial of the issuance of a preliminary injunction. We hold that prejudicial error has not been made to appear in this case.

Affirmed.

PARKER and VAUGHN, JJ., concur.