Carolina Freight Carriers Corp. v. Local Union 61 of the International Brotherhood of Teamsters

11 N.C. App. 159 | N.C. Ct. App. | 1971

BRITT, Judge.

In their first assignment of error, appellants contend that Judge Falls committed error in signing all orders in this case when no complaint had been filed by plaintiff and no summons issued in the superior court; appellants contend that the superior court never acquired jurisdiction. The assignment of error is well taken.

We hold that the filing of a complaint or the issuance of summons pursuant to G.S. 1A-1, Rule 3, is a condition precedent to the issuance of an injunction or restraining order, and when a complaint is not filed or summons is not issued as provided in said rule, an action is not properly instituted and the court does not have jurisdiction.

G.S. 1A-1, Rule 2, provides: “There shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action.”

G.S. 1A-1, Rule 3, provides as follows:

Rule 3. Commencement of action.

A civil action is commenced by filing a complaint with the court. The clerk shall enter the date of filing on the original complaint, and such entry shall be prima facie evidence of the date of filing.

A civil action may also be commenced by the issuance of a summons when

(1) A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days and

(2) The court makes an order stating the nature and purpose of the action and granting the requested permission.

Appellee strenuously contends that by virtue of G.S. 1A-1, Rule 65 (b), a temporary restraining order may be issued upon an affidavit provided it clearly appears from specific facts shown by the affidavit that immediate and irreparable injury, loss, or damage will result to the applicant. Appellee contends that by virtue of Rule 65(b) a temporary restraining order is given a status different from a civil action as envisioned by Rule 3. We do not agree with these contentions. Rule 3 and Rule 65(b) must be construed in pari materia; procedure under Rule 65(b) is permissible only after an action is commenced as provided by Rule 3.

In this case, appellee only filed a document denominated an affidavit. This document did not purport to be a complaint and cannot be held to be one. Among other things, (1) it was not properly captioned as required by Rule 10(a) ; (2) it was not signed by an attorney of record as required by Rule 11 (a) ; and (3) there was no demand for relief made in the document as required by Rule 8(a) (2). The record fails to disclose that a summons was ever issued.

We hold that Judge Falls did not have jurisdiction in this case, therefore, the temporary restraining order was void and disobedience of it was not punishable. 43 C.J.S., Injunctions, § 259, p. 1007. The restraining order is vacated and the orders finding appellants in contempt are

Reversed.

Judges Campbell and Graham concur.