Duke Power Co. v. Hogan

MORRIS, Judge.

Appellants contend that a final and permanent restraining order has been entered against them without their having sufficient notice, without their having filed answer, and without their having had opportunity to present evidence on the merits of the case. We are of the opinion that their position is well taken.

The record shows that they received the only notice of this action on 12 June 1972, when the summons, complaint, bond, two affidavits, and the show cause order were served on them. The show cause order required them to appear on 14 June and show cause why a temporary restraining order should not issue. They appeared as directed and presented two affidavits which, they argue, were necessarily hastily prepared.

On 15 June 1972, an order was entered which by its language is not a temporary restraining order but a permanent restraining order and a final order in the action.

G.S. 40-3 gives plaintiff the right to go upon defendants’ lands to make a survey of the route over which it proposes to put its lines. This defendants concede. Nevertheless, we are of the opinion that the court erred in entering a final order permanently restraining defendants upon a hearing had on the return of a show cause order seeking a temporary injunction; particularly where, as here, the judgment was entered over defendants’ objection when no answer had been filed and defendants had only two days notice.

The judgment of the trial court is, therefore, reversed and the cause remanded for further proceedings.

Reversed.

Judges Campbell and Parker concur.