Adams v. Flora Macdonald College

Johnson, J.

The matter of determining finally whether the defendant, Flora Macdonald College, and its Board of Trustees were authorized to execute the consolidation agreement was not within the scope of the hearing below. The only question before the court was whether the temporary order restraining execution of the agreement should be continued so as to preserve the status quo until final adjudication of the case. It necessarily follows that the court erred in concluding and adjudging as matters of finality (1) that the defendant and its Board of Trustees were authorized to execute the consolidation agreement, (2) that the plaintiffs were not entitled to the permanent injunctive relief demanded, and (3) that the action should be dismissed. Therefore, the judgment appealed from, except as it denies the plaintiffs’ motion for injunctive relief pendente lite and dissolves the temporary restraining order previously issued, will be vacated and set aside, and the facts found and conclusions made by the court will be deemed and treated as having no binding effect, except insofar as they support the court’s ruling in denying injunctive relief pendente lite. See Buchanan v. Vance, 237 N.C. 381, 75 S.E. 2d 240; Mosteller v. R. R., 220 N.C. 275, 17 S.E. 2d 133; 43 C.J.S., Injunctions, Sec. 253. Since the court at the hearing below was without jurisdictional authority to finally adjudicate the question whether the defendant and its Board of Trustees were empowered to execute the consolidation agreement (21 C.J.S., Courts, Sec. 15 (b)), this Court upon the record as presented is without jurisdiction to decide the question. The jurisdiction of the Supreme Court is derivative, and where the court below has no jurisdiction, the Supreme Court can acquire none by appeal. Temple v. Temple, 246 N.C. 334, 98 S.E. 2d 314; Baker v. Varser, 239 N.C. 180, 79 S.E. 2d 757; Spaugh v. Charlotte, 239 N.C. 149, 79 S.E. 2d 748.

We also take note of admissions made by counsel for both sides during the argument here to the effect that after the temporary restraining order was dissolved and pending appeal the defendant executed the consolidation agreement sought to be restrained. Thus, the act which the trial court refused to restrain pendente lite has been consummated. Therefore, since a court cannot restrain the doing of an act which has been consummated, the question presented by this appeal, namely, whether the trial court erred in denying injunctive relief pendente lite, has become academic. In accord with many authoritative decisions of this Court, we express no opinion as to the merits of the moot question thus presented by the appeal. Topping v. Board of Education, post, 719, and cases there cited.

In Medlin v. Curran, 243 N.C. 691, 692, 91 S.E. 2d 713, it is said: “Decisions of this Court uniformly hold that where pending an appeal to this Court from an order dissolving a temporary restraining order, the act sought to be restrained has been consummated, question as to whether defendants should have been restrained pending final hearing becomes academic, and the appeal will be dismissed.”

In Austin v. Dare County, 240 N.C. 662, 663, 83 S.E. 2d 702, it is said: “It is quite obvious that a court cannot restrain the doing of that which has been already consummated.”

For the reasons previously indicated, we express no opinion respecting the' validity of the consolidation agreement as executed by the defendant pending the appeal. Unless and until this question is presented by proper pleadings to the lower trial court and is ruled upon by it in this or another action wherein all necessary parties are before the court, it is not given for this Court to express an opinion one way or the other.

Error and Remanded.