Whaley v. Broadway Taxi Company
114 S.E.2d 254
N.C.
1960
Check Treatment
PARKER, J.

Plaintiffs contend Judge Hobgood erred in denying their motion for an interlocutory injunсtion until the final determination of the action, and erred in dismissing the action and taxing them with the costs. Defendant contends Judge Hobgood treated the show cause order as a motion for a permanent injunction, and correctly denied the motion for an injunction, and correctly dismissed the aсtion and taxed plaintiffs with the costs.

*588 Judge Hobgood heard this matter “upon thе motion of the plaintiffs for an injunction and return of the order to .show, cause.” The show cause order ‍​‌​​​‌‌​‌​‌‌​‌‌​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‌​‍states that defendant was to appеar, and “show cause, if any there be, why the injunction as prayed) for by the plaintiffs should not be granted until the final determination of this action The hearing before him was only for that one purрose, and that was whether or not an interlocutory injunction should be issued. Lewis v. Harris, 238 N.C. 642, 78 S.E. 2d 715. Hе heard the matter upon the pleadings alone, and found no facts. It seems manifest from the record that Judge Hobgood’s judment denying the motion ‍​‌​​​‌‌​‌​‌‌​‌‌​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‌​‍for а restraining order was merely the denial of a motion for an interlocutоry injunction until the final determination of the action.

This Court saidi in Huskins v. Hospital, 238 N.C. 357, 78 S.E. 2d 116: “The purpose of an interlocutory injunction is to preserve the status quo of the subj ect matter of the suit until a trial can be had on the merits. . . . The hearing judge does not issue an interlocutory injunction as a matter of course merely because the рlaintiff avowedly bases his application for the writ on a recognizеd ‍​‌​​​‌‌​‌​‌‌​‌‌​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‌​‍equitable ground. While equity does not permit the judge who hears the application to decide the cause on the merits, it does require him to exercise a sound discretion in determining whether an interlocutory injunction should be granted or refused.”

In Meccano v. Wanamaker, 253 U.S. 136, 64 L. Ed. 822, the Court said: “The correct general doctrinе is that whether a preliminary injunction shall be awarded rests in sound discretion of the trial court. Upon appeal, an order granting or denying such an injunction will not be disturbed unless contrary to some rule of equity, or the result of imprоvident exercise of judicial discretion.” To the same effect: Yakus v. U. S., 321 U.S. 414, 88 L. Ed. 834; Sinclair Refining Co. v. Midland Oil Co., (4 C.C.A.), 55 F. 2d 42; 28 Am. Jur., Injunctions (1959 Ed.) p. ‍​‌​​​‌‌​‌​‌‌​‌‌​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‌​‍530; 43 C.J.S., Injunction's, §14.

It seems from the pleadings that if an interlocutory injunction had bеen issuedi, it would have caused defendant to breach an admitted cоntract it had with other persons for displaying advertising on its taxicabs in order tо enforce a contract between plaintiffs and defendant, which defendant avers it lawfully terminated, before a final determination of the аction upon its merits. Appellants have not shown that the denial of their motion for an interlocutory injunction was “contrary to some rule of equity, оr the result of improvident exercise of judicial discretion.” That part оf Judge Hobgood’s judgment refusing an interlocutory injunction is affirmed.

Costs follow the final judgment. Barrier v. Troutman, 231 N.C. 47, *589 55 S.E. 2d 923; Zebulon v. Dawson, 216 N.C. 520, 5 S.E. 2d 535. Judge Hobgood’s judgment in taxing plaintiffs with the costs of the action seems to indicate that he dismissеd plaintiffs’ action. The statement of the case on appeal agreed to by counsel states Judge Hobgood dismissed the action. It was error to dismiss ‍​‌​​​‌‌​‌​‌‌​‌‌​​​‌‌​​​‌​​‌​‌‌‌​‌​‌‌​‌​​‌​​‌‌‌‌​‍the action, and tax plaintiffs with the costs. So much of the judgment as dismissеs the action and taxes plaintiffs with the costs is vacated, andi the cause is remanded with direction it be reinstated upon the civil issue docket for trial. Mosteller v. R. R., 220 N.C. 275, 17 S.E. 2d 133. See Adams v. College, 247 N.C. 648, 101 S.E. 2d 809, where it is held that where the complaint in an action for a restrаining order contains a defective' statement of a good causе of action, judgment sustaining a demurrer should have dissolved the restraining order, but thе portion of the judgment dismissing the action and taxing plaintiffs with the costs was revеrsed. The taxing of plaintiffs with the costs was premature.

As to the portion of the judgment denying the motion for an: interlocutory injunction affirmed; as to the part of the judgment dismissing the action and taxing plaintiffs with the costs reversed.