Smith v. CITY OF ROCKINGHAM ( 1966 )

151 S.E.2d 568 (1966) 268 N.C. 697

James W. SMITH, Elizabeth W. Smith and Elizabeth N. Wall
v.
CITY OF ROCKINGHAM.

No. 527.

Supreme Court of North Carolina.

December 14, 1966.

Page & Page, Rockingham, for plaintiffs.

Jones & Deane, Rockingham, for defendant.

BRANCH, Justice.

The judgment entered in this cause was a final judgment, entered in equity, and should have been granted only by the judge at the final trial of the action. Hamilton v. Icard, 112 N.C. 589, 17 S.E. 519.

G.S. § 160-90 provides: "Power to adjust assessment.—The governing body may correct, cancel or remit any assessment for a local improvement, and may remit, cancel or adjust the interest or penalties on any such assessment. The governing body has the power, when in its judgment there is any irregularity, omission, error or lack of jurisdiction in any of the proceedings relating thereto, to set aside the whole of the local assessment made by it, and thereupon to make a reassessment. In such case there shall be included, as a part of the costs of the public improvement involved, all interest paid or accrued on notes or certificates of indebtedness, or assessment bonds issued by the municipality to pay the expenses of such improvement. The proceeding shall be in all respects as in case of local assessments, and the reassessment shall have the same force as if it had originally been properly made."

Plaintiffs brought this action before any assessment was made or before their names were placed on an assessment roll. The defendant by virtue of G.S. § 160-90 had authority to correct, cancel or remit the assessment. In its pleadings defendant denied the plaintiffs' allegation that the defendant intended to place their names on an assessment roll. This raised an issue of fact. The record does not reveal that jury trial was waived, nor that this was a proceeding referred to under G.S. § 1-513.

The plaintiffs further allege that they may be restricted to appeal only on the question of amount by virtue of G.S. § 160-89. This statute sets out the method of appeal under Article 9, and if defendant's failure to comply with the statute is jurisdictional, as plaintiffs allege, they do not lose their right to seek equitable relief against a void assessment after the assessment roll is made up. Winston-Salem v. Smith, 216 N.C. 1, 3 S.E.2d 328. Thus plaintiff's mere apprehension that injury may occur presents a serious question as to whether plaintiffs have alleged sufficient facts to entitle them to injunctive relief at this time.

"`It is not enough for the plaintiff to allege simply that the commission or continuance of the act will cause him injury, or serious injury, or irreparable injury; but he should allege the facts, from which the court may determine whether or not such injury will result.' McIntosh, North Carolina Practice and Procedure, § 853(2)." Pharr v. Garibaldi, 252 N.C. 803, 115 S.E.2d 18.

The injunction is an extraordinary remedy and will not be granted except in cases where adequate relief cannot be had without it. Frink v. Stewart, 94 N.C. 484.

In the case of Whitaker v. Beasley, 261 N.C. 733, 136 S.E.2d 127, this Court considered the authority of the trial judge in pre-trial hearings under G.S. § 1-169.1, and stated:

"A pre-trial conference under G.S. § 1-169.1 is just what the name implies. Its purpose is to consider specifics mentioned in the statute; among them, motions to amend pleadings, issues, reference, admissions, judicial notice, and other matters which may aid in the disposition of the cause. `7. In the discretion of the presiding judge, the hearing and determination of any motion, or the entry of any order, judgment or decree, which the presiding judge is authorized to hear, determine, or enter at term.' No. 7, above quoted, fits into the framework of the pre-trial procedure. It is not a grant of authority to hear and determine disputed facts. Its order is interlocutory in nature. Green v. Western & Southern Life Ins. Co., 250 N.C. 730, 110 S.E.2d 321. `Following the hearing the judge shall enter an order reciting the stipulations made and the action taken. Such order shall control the subsequent course of the case unless in the discretion of the trial judge the ends of justice require its modification. After the entry of the pre-trial order, the case shall stand for trial and may be tried at the same * * * or at a subsequent term, as ordered by the judge.' (Emphasis added).

"In many cases, certain facts necessary to be shown to make out a complete case are actually not in dispute. These may be stipulated, narrowing the controversy to the matters actually controverted. The facts stipulated are available for inclusion in the record in case of appellate review.

"From the foregoing, it is apparent the judge at the pre-trial exceeded his authority in finding facts, establishing defenses pleaded but not admitted, and in entering a final judgment in the case." (Emphasis ours)

Injunctive relief should be exercised cautiously, after thoughtful deliberation, and with a full conviction of its urgent necessity. In the instant case the trial judge found its necessity, determined issues of fact, and pronounced the final judgment at the pre-trial conference. By so doing he exceeded his authority.

The judgment entered below is reversed and vacated.

Reversed.