{ "id": 8630239, "name": "MRS. W. H. ELLIOTT, CLIFTON ELLIOTT and Wife, VIVIAN ELLIOTT; J. K. ELLIOTT and Wife, NANNIE BELLE ELLIOTT; EUSTACE ELLIOTT and Wife, PAULINE ELLIOTT; JASPER ELLIOTT and Wife, CLARA BELLE ELLIOTT; LILLIE MAE ATKINS and Husband, HOMER ATKINS; EMMA RAY and Husband, HENRY RAY; and NELLIE DAVIS and Husband, HERMAN DAVIS, v. SWARTZ INDUSTRIES, INC.", "name_abbreviation": "Elliott v. Swartz Industries, Inc.", "decision_date": "1950-02-03", "docket_number": "", "first_page": "425", "last_page": "427", "citations": [ { "type": "official", "cite": "231 N.C. 425" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "54 S.E. 841", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "142 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652510 ], "opinion_index": 0, "case_paths": [ "/nc/142/0569-01" ] }, { "cite": "1 S.E. 2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628439 ], "opinion_index": 0, "case_paths": [ "/nc/215/0120-01" ] }, { "cite": "71 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278076 ], "opinion_index": 0, "case_paths": [ "/nc/71/0331-01" ] }, { "cite": "95 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272922 ], "weight": 2, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/95/0050-01" ] }, { "cite": "51 S.E. 937", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "139 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653174 ], "opinion_index": 0, "case_paths": [ "/nc/139/0556-01" ] }, { "cite": "53 S.E. 845", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "141 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252664 ], "opinion_index": 0, "case_paths": [ "/nc/141/0232-01" ] }, { "cite": "200 S.E. 2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628004 ], "opinion_index": 0, "case_paths": [ "/nc/215/0061-01" ] } ], "analysis": { "cardinality": 406, "char_count": 5813, "ocr_confidence": 0.473, "pagerank": { "raw": 1.114690476913653e-07, "percentile": 0.5716298517790034 }, "sha256": "b037b19b93fcc320454d8c8eb23d4413637b881e6f98891024ab8adc74e7f199", "simhash": "1:64f61054423c45dd", "word_count": 995 }, "last_updated": "2023-07-14T22:38:15.383158+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. W. H. ELLIOTT, CLIFTON ELLIOTT and Wife, VIVIAN ELLIOTT; J. K. ELLIOTT and Wife, NANNIE BELLE ELLIOTT; EUSTACE ELLIOTT and Wife, PAULINE ELLIOTT; JASPER ELLIOTT and Wife, CLARA BELLE ELLIOTT; LILLIE MAE ATKINS and Husband, HOMER ATKINS; EMMA RAY and Husband, HENRY RAY; and NELLIE DAVIS and Husband, HERMAN DAVIS, v. SWARTZ INDUSTRIES, INC." ], "opinions": [ { "text": "Per Curiam.\nThe plaintiffs brought this action, to restrain the defendant from maintaining a nuisance from which they allege they sustained a special damage or injury to their health and discomfort in enjoyment of their home. The nuisance complained of was the operation of a rendering and processing plant in which dismembered portions of animals in various stages of decomposition and putrefaction were steamed in a cooker or digester, thereby causing the fats to collect or rise to the top, the \u201cgreaves\u201d falling to the bottom and oils and by-products thus recovered. It is alleged tbat \u201coffensive, foul, sickening, and noxious odors, gases, and vapors are emitted to sucb extent tbat they infiltrate and contaminate tbe atmosphere for a distance of one or two miles,\u201d and tbat by reason thereof tbe plaintiffs are forced to inbale tbe offensive odors to tbeir great damage.\nAfter tbe filing of plaintiffs\u2019 complaint tbe defendant, as it contends as a matter of right, moved to strike out certain portions of tbe complaint as irrelevant and prejudicial. While this motion was pending tbe defendant was served with an order to show cause why a temporary restraining order should not issue against it to continue to tbe bearing on tbe merits.\nAt tbe time and place set for a bearing of tbe order to show cause the defendant moved for a continuance, stating as a ground therefor tbat defendant intended to demur to tbe complaint on tbe ground tbat it failed to state a cause of action entitling tbe plaintiff to equitable relief, and this could not be done until tbe complaint was in final form.\nTbe motion for continuance was overruled and defendant appealed. Tbe court thereupon proceeded to bear tbe order to show cause upon tbe evidence introduced, and made an order restraining tbe defendant from tbe continued operation of tbe plant so as \u201cto emit foul, sickening, noxious and offensive odors until a final determination of this cause.\u201d Tbe defendant excepted to tbe signing of tbe order and gave notice of appeal.\nTbe defendant contends tbat tbe appeal from denial of bis motion for continuance took tbe case out of tbe jurisdiction of tbe court, and tbat subsequent orders therein were coram non judice and should be so declared by this Court. With this tbe Court cannot agree.\nTbe want of logical connection between defendant\u2019s motion to strike and tbe motion to continue tbe case seems to be apparent. If it was necessary to trim down tbe complaint in order to support tbe demurrer to tbe cause of action contained in it, tbe deletion of sucb matter would have been improper.\nTbe continuance of tbe case was within tbe discretion of tbe court,\u2014 and so also was tbe temporary restraining order giving relief from tbe condition complained of until the bearing: McIntosh, Practice and Procedure, p. 801; Sykes v. Blakey, 215 N.C. 61, 200 S.E. 2d 910; Dunn v. Marks, 141 N.C. 232, 53 S.E. 845; S. v. Dewey, 139 N.C. 556, 51 S.E. 937; Green v. Griffin, 95 N.C. 50; Carleton v. Byers, 71 N.C. 331; Johnson v. Life Ins. Co., 215 N.C. 120, 1 S.E. 2d 381; and there was no abuse of tbat discretion in either phase of tbe matter. \u201cAbuse of discretion is more apt to be shown in granting a continuance, and in tbe dilatory administration of justice.\u201d S. v. Sultan, 142 N.C. 569, 54 S.E. 841. And from Green v. Griffin, 95 N.C. 50, 52, we find applicable precedent:\n\u201cThe defendant insists that the appeal, when perfected, annulled the order for all purposes, and left the parties against whom it was directed as free to act as before it was made. If this were so, it is manifest that the right to arrest the action of one, committing irreparable damages by a restraining order, could be easily defeated by taking an appeal, and consummating what was intended, before it could be acted upon in the higher Court. . . . The remedy sought by the process might thus become illusory, and success in the suit followed by no benefit to the aggrieved party.\u201d\nThe temporary restraining order does not prohibit any act except that which would be in any case a violation of legal duty.\nThe orders appealed from must be affirmed. The appeal is dismissed.\nAppeal dismissed.", "type": "majority", "author": "Per Curiam." } ], "attorneys": [ "Victor S. Bryant and Robert I. Lipton for defendant, appellant.", "Fuller, Reade, Umstead & Fuller, James R. Patton, Jr., James L. Newsom, and John E. Markham, for plaintiffs, appellees." ], "corrections": "", "head_matter": "MRS. W. H. ELLIOTT, CLIFTON ELLIOTT and Wife, VIVIAN ELLIOTT; J. K. ELLIOTT and Wife, NANNIE BELLE ELLIOTT; EUSTACE ELLIOTT and Wife, PAULINE ELLIOTT; JASPER ELLIOTT and Wife, CLARA BELLE ELLIOTT; LILLIE MAE ATKINS and Husband, HOMER ATKINS; EMMA RAY and Husband, HENRY RAY; and NELLIE DAVIS and Husband, HERMAN DAVIS, v. SWARTZ INDUSTRIES, INC.\n(Filed 3 February, 1950.)\n1. Injunctions \u00a7 6: Appeal and Error \u00a7 14\u2014\nDefendant\u2019s appeal from the denial of a motion for continuance does not deprive a court of equity from entering a temporary order in the cause restraining the maintenance of a nuisance.\n2. Trial \u00a7 4\u2014\nDefendant\u2019s motion for a continuance on the ground that it had moved to strike certain allegations of the complaint as a matter of right and intended to demur to the complaint, but could not do so until the complaint was in final form, is illogical, since if the striking of the allegations is necessary to render the complaint demurrable, the deletion of such matter would be improper.\n3. Same\u2014\nA motion for continuance is addressed to the discretion of the trial court.\n4. Injunctions \u00a7 6\u2014\nThe granting of a temporary order restraining the maintenance of a nuisance until the hearing is within the discretion of the trial court.\n5. Appeal and Error \u00a7 40b\u2014\nAppeals from discretionary orders of the trial court will be dismissed in the absence of abuse of discretion.\nDefeNdaNt\u2019s appeal from Burney, J., in Chambers August 31, 1949, DuehaM Superior Court.\nVictor S. Bryant and Robert I. Lipton for defendant, appellant.\nFuller, Reade, Umstead & Fuller, James R. Patton, Jr., James L. Newsom, and John E. Markham, for plaintiffs, appellees." }, "file_name": "0425-01", "first_page_order": 475, "last_page_order": 477 }