{
  "id": 8549087,
  "name": "HANNAH S. JOLLIFF and W. SAVAGE JOLLIFF v. CORTEZ WINSLOW",
  "name_abbreviation": "Jolliff v. Winslow",
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  "casebody": {
    "judges": [
      "Judges Campbell and Hedrick concur."
    ],
    "parties": [
      "HANNAH S. JOLLIFF and W. SAVAGE JOLLIFF v. CORTEZ WINSLOW"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nBy way of five assignments of error, defendant essentially advances two arguments: first, that G.S. 1A-1, Rule 65(b) of the North Carolina Rules of Civil Procedure violates the equal protection and due process clauses of the State and Federal Constitutions, and, second, that G.S. 1-485, authorizing preliminary injunctions, is unconstitutional because it too violates those provisions of the State and Federal Constitutions.\nRule 65(b) of the North Carolina Rules of Civil Procedure permits the issuance of temporary restraining orders \u201cwithout notice to the adverse party if it clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.\u201d Because a temporary restraining order is an immediate remedy, Rule 65 carefully sets forth several protections designed to check the extent of use of the remedy.\nDefendant contends that Rule 65(b) is unconstitutional because it permits the invasion of property rights upon a showing of \u201cpossible injury, loss, or damage\u201d and because it authorizes the entry of a temporary restraining order without notice to the adverse party.\nA temporary restraining order is not predicated upon illusory injury, loss, or damage, as is stated by defendant, but is entered only upon a showing of immediate and irreparable injury, loss, or damage. Because it is an ex parte injunction, a temporary restraining order, by its nature, necessarily issues upon plaintiff\u2019s evidence either by affidavit or by verified complaint. Such an order is to be entered only when plaintiff can \u201cshow a need for relief so compelling that there is no time for notice and hearing.\u201d Dobbs on Remedies, \u00a7 2.10 (1973).\nWe see nothing unconstitutional about a rule that permits the issuance of a temporary restraining order. The entry of such an order does not determine the respective rights of the parties but preserves the status quo until a motion for a preliminary injunction can, after notice, be heard, affording the parties a full and fair investigation and determination according to strict legal proofs and the principles of equity. Defendant\u2019s first argument is without merit.\nDefendant argues that G.S. 1-485, authorizing the issuance of a preliminary injunction, is also void and unconstitutional on its face and as it is applied. A preliminary injunction, unlike a temporary restraining order, requires notice to the adverse party and a hearing. G.S. 1A-1, Rule 65 N.C. R. Civ. P.; Lambe v. Smith, 11 N.C. App. 580, 181 S.E. 2d 783. The preliminary injunction \u201cserves as an equitable policing measure to prevent the parties from harming one another during the litigation; to keep the parties, while the suit goes on, as far as possible in the respective positions they occupied when the suit began.\u201d Hamilton Watch Co. v. Benrus Watch Co., 206 F. 2d 738, 742 (2d Cir. 1953). See generally Dobbs on Remedies, \u00a7 2.10 (1973). We fail to see how G.S. 1-485, authorizing preliminary injunctions, is unconstitutional. Defendant\u2019s second argument is without merit.\nA preliminary mandatory injunction may be issued when an easement into one\u2019s property has been obstructed. Leaksville Woolen Mills v. Land Company, 183 N.C. 511, 112 S.E. 24. In the case at bar, the trial judge heard evidence before issuing the preliminary injunction. Defendant has not preserved this evidence in the record on appeal; consequently, we must presume that the evidence supported the findings and rendered the findings conclusive. In Re Reassignment of Albright, 278 N.C. 664, 180 S.E. 2d 798.\nAffirmed.\nJudges Campbell and Hedrick concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "James R. Walker, Jr., for the defendant-appellant.",
      "No counsel contra."
    ],
    "corrections": "",
    "head_matter": "HANNAH S. JOLLIFF and W. SAVAGE JOLLIFF v. CORTEZ WINSLOW\nNo. 741DC668\n(Filed 4 December 1974)\n1. Injunctions \u00a7 12; Rules of Civil Procedure \u00a7 65 \u2014 statute permitting temporary restraining order \u2014 constitutionality\nProvisions of G.S. 1A-1, Rule 65(b), permitting the entry of a temporary restraining order without notice to the adverse party do not violate the equal protection and due process clauses of the State and Federal Constitutions.\n2. Injunctions \u00a7 12 \u2014 statute permitting preliminary injunction \u2014 constitutionality\nThe statute authorizing preliminary injunctions, G.S. 1-485, is not unconstitutional.\nAppeal by defendant from Horner, District Court Judge, 8 April 1974 Session of District Court held in Perquimans County. Argued before the Court of Appeals 14 November 1974.\nOn 1 April 1974 plaintiffs filed a complaint alleging that they have interests in certain lands separated from a highway by defendant\u2019s land; that they own an easement across defendant\u2019s land to the highway; that defendant has obstructed the easement; and that plaintiffs need the use of the easement to manage and enjoy their land. The complaint contains a prayer for an order declaring plaintiffs to be owners of an easement by prescription, and an injunction directing defendant to remove the obstructions from the easement. On 1 April 1974 a temporary restraining order was entered, enjoining defendant from obstructing the easement. Defendant subsequently excepted and moved to dissolve the temporary restraining order.\nAfter a hearing on 8 April 1974, Judge Horner found facts favorable to plaintiffs, granted plaintiffs a preliminary injunction, and denied defendant\u2019s motion to dissolve. Defendant appealed the entry of the temporary restraining order and the denial of the motion to dissolve to this Court on 18 April 1974. On 80 April 1974 defendant, after being served with the order of 8 April 1974 and preliminary injunction, gave notice of appeal to this Court.\nJames R. Walker, Jr., for the defendant-appellant.\nNo counsel contra."
  },
  "file_name": "0107-01",
  "first_page_order": 135,
  "last_page_order": 137
}