Hamilton v. . Icard , 112 N.C. 589 ( 1893 )

Action was brought in CALDWELL Superior Court (Tenth District); restraining order was issued by Bynum, J., the judge resident in the Eighth District, on 3 December, 1892, and made returnable at Statesville on 20 December, 1892, before Armfield, J., who by assignment held the courts of the Tenth District from 1 July, 1892, to 31 December, 1892.

At the hearing the defendants moved to dismiss the proceedings on the ground that while Armfield, J., was the proper judge to hear the application for an injunction, he should have had the parties before him at some place within the Tenth District.

His Honor refused the motion to dismiss and granted the injunction till the hearing, and defendants appealed. The general jurisdiction of restraining orders and injunctions is vested in the judges of the Superior Court. The Code, sec. 335. In specifying which of these judges has jurisdiction of any specified case it is provided that any of them may grant a restraining order. The Code, sec. 334. This he may, of course, do in any cause and anywhere in the State. This is because a restraining order is granted of urgency upon ex parte application usually, and cannot last more than twenty days. The Code, sec. 346. Its object is to preserve matters in statu quo until, after notice, upon a hearing of both parties at a time and place designated in the order, an injunction till the hearing may be refused or granted. The jurisdiction of the application for an injunction till the hearing is specifically restricted by The Code, sec. 336, to (591) "the resident judge of the district, or the judge assigned to the district or holding by exchange the courts of the district" (The Code, sec. 336), or holding a special term in the county where the cause is pending.Ib., section 335. It is further provided that if the judge before whom the order is made returnable fails to hear it, it shall be competent for any judge resident in, or assigned to, or holding by exchange the courts of some adjoining district to hear it upon giving ten days notice to the parties interested. Under section 337, by stipulation in writing duly signed by the parties or their attorney, they may designate any other judge than the ones indicated by section 336 to hear the application. The above is a summary of the provisions of The Code as to the jurisdiction in such cases. The granting of a perpetual injunction is vested, of course, in the judge who tries the cause at the final hearing.

From the above summary it will be seen that while a restraining order, which can be granted by any judge, can be issued anywhere in the State and a perpetual injunction must be granted only in the county where the cause is pending, since it can only issue upon the final trial of the action, as to injunctions to the hearing, while the law designates what judges may grant them, there is no provision in the statute nor in the nature of the proceeding as to where the judge shall be at such hearing. The restraining order must be made returnable before one of the judges above indicated, and name a time and place for such return, of course, but the selection of the place is left by legislation to the judge who grants the restraining order, and the time also, except that the latter cannot exceed more than twenty days. The selection of the place of hearing is wisely left to the discretion of the judge. Often it might be inconvenient to the parties or the judge before whom (592) the order is made returnable to designate a place in the district in which the cause is pending. Such discretion is not likely to be abused. If it should be, the Legislature can make it requisite to designate a place within the district. The statute does not now so provide. Usually the order is, in fact, made returnable at some point in the district, as the judge to hear the application is either the resident judge or the judge holding courts therein, and it is not usually the case that both of them are absent therefrom at the same time for a longer period than twenty days.

Galbreath v. Everett, 84 N.C. 546, was decided prior to the act of 1885. That act makes the judge assigned to the district, judge thereof for 6 months, beginning either 1 January, or 1 July. As he is still made one of the judges before whom the application is returnable, the statute clearly did not contemplate he should always be in the district, especially at times when the courts are not usually being held, as in the present case, 20 December.

In the present case there is no cause for a complaint, for the judge hearing the application was also one of those designated by the statute to hear such application in case the judge named in the order fails to hear it, to wit, the judge of an adjoining district.

In hearing the application in an adjoining district, at the place designated by the restraining order, there was no error. This is the only exception which comes up to us. But in this Court there is a motion to dismiss the appeal because there was no "case settled" on appeal, nor, indeed, any "case" tendered by appellant. This, in appeals where a "case" is necessary, is not ground for a motion to dismiss, but for a motion to affirm the judgment, since there may still be errors on the face of the record proper entitling the appellant to a reversal of the proceedings below. Peebles v. Braswell, 107 N.C. 68; Manufacturing (593) Co. v. Simmons, 97 N.C. 89.

But this being an appeal from the granting of an injunction till the hearing, no formal "case on appeal" is required. The correctness of the ruling in question is tested by the judgment appealed from, which is rendered solely upon the pleadings and affidavits filed in the cause. From the judgment in this case it appears that the defendant objected to the jurisdictional because of the place of hearing, which was in another district; the court overruled the objection, and to such part of the judgment the defendant excepted and appealed.

AFFIRMED.

Cited: Crabtree v. Scheelky, 119 N.C. 58; Worth v. Bank, 121 N.C. 347;Cooper v. Cooper, 127 N.C. 493; Wilson v. Rankin, 129 N.C. 450;Wallace v. Salisbury, 147 N.C. 59; Royal v. Thornton, 150 N.C. 295;Moore v. Monument Co., 166 N.C. 212.

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