Pruitt v. Williams

• Decision Date: 07 October 1975
• Docket Number: No. 17,17
• Citation: 218 S.E.2d 348,288 N.C. 368
• Parties: Dick PRUITT and wife, Sterling Pruitt v. Ardel WILLIAMS and wife, Mrs. Ardel Williams.
• Court: North Carolina Supreme Court

Page 348

218 S.E.2d 348

288 N.C. 368

Dick PRUITT and wife, Sterling Pruitt v. Ardel WILLIAMS and wife, Mrs. Ardel Williams.

No. 17.

Supreme Court of North Carolina.

Oct. 7, 1975.

Wilson, Palmer & Simmons by George C. Simmons, III, Lenoir, for defendant appellants.

No counsel contra.

MOORE, Justice.

Defendants appeal under G.S. § 1--277 from an order entered by Judge Thornburg on 25 September 1974 issuing a preliminary injunction restraining defendants from blocking a road until the final determination of the action.

At the threshold of this appeal, we are confronted with the question of whether an appeal lies from the order of the trial judge granting the preliminary injunction. The term 'preliminary injunction' refers to an interlocutory injunction issued after notice and hearing which restrains a party pending trial on the merits. G.S. 1A--1, Rule 65; Setzer v. Annas, 286 N.C. 534, 212 S.E.2d 154 (1975).

G.S. 1--277, in effect, provides that no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a Substantial right which he would lose if the ruling or order is not reviewed before final judgment. Consumers Power v. Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974); Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311 (1956); Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669 (1951); Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950).

Thus, G.S. 1--277 serves as a roadblock to appeals from interlocutory orders which do not deprive the appellant of a substantial right. The reason for the rule is more important today, due to the constantly increasing volume of appeals to our appellate courts, than it was when stated by Justice Ervin in 1949:

'There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders. The rules regulating appeals from the Superior Court to the Supreme Court are designed to forestall the useless delay inseparable from unlimited fragmentary appeals, and to enable courts to perform their real function, I.e., to administer 'right and justice . . . without sale, denial, or delay.' N.C Const., Art. I, Sec. 35.' Veazey v. Durham, supra, at 363--64, 57 S.E.2d at 382.

The first question presented then is whether the evidence discloses that defendants have been deprived of any substantial right which they might lose if the order granting the preliminary injunction is not reviewed before final judgment. Defendants did not offer any evidence. Neither did they allege the loss of any substantial right which might occur if the preliminary injunction was granted. They only denied that plaintiffs had the right to use the road. Apparently, defendants take the position that plaintiffs' evidence does not entitle plaintiffs to injunctive relief, or that the evidence discloses that defendants will indeed lose a substantial right unless the plaintiffs' entitlement to the preliminary injunction is reviewed on appeal prior to the final determination of the action.

The burden is on the plaintiffs to establish their right to a preliminary injunction. G.S. 1A--1, Rule 65(b); Setzer v. Annas, supra; Board of Elders v. Jones, 273 N.C. 174, 159 S.E.2d 545 (1968). To justify the issuance of the preliminary injunction ordinarily it must be made to appear that (1) there is probable cause that plaintiff will be able to establish the rights which he asserts and (2) there is reasonable apprehension of irreparable loss unless interlocutory injunctive relief is granted or unless interlocutory injunctive relief appears reasonably necessary to protect plaintiff's rights during the litigation. Setzer v. Annas, supra; Western Conference etc. v. Creech and Teasley v. Creech and Western Conference etc. v. Miles, 256 N.C. 128, 123 S.E.2d 619 (1962).

To issue or to refuse to issue an interlocutory injunction is usually a matter of discretion to be exercised by the trial court. Its purpose is to preserve the status quo of the subject matter involved until a trial can be had on the merits. In Re Assignment of Albright, 278 N.C. 664, 180 S.E.2d 798 (1971); Huskins v. Hospital, 238 N.C. 357, 78 S.E.2d 116 (1953). The issuing court, after weighing the equities, and the advantages and disadvantages to the parties, determines in its sound discretion whether an interlocutory injunction should be granted or refused. The court cannot go further and determine the final rights of the parties, which must be reserved for the final trial of the action. Telephone Co. v. Plastics, Inc., 287 N.C. 232, 214 S.E.2d 49 (1975); In re Assignment of Albright, supra; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309 (1924). On an appeal from an order of a superior court judge granting or refusing a preliminary injunction, the Supreme Court is not bound by the findings of fact of the hearing judge, but may review and weigh the evidence and find the facts for itself. Telephone Co. v. Plastics, Inc., supra; Setzer v. Annas, supra; In re Assignment of Albright, supra.

Plaintiffs' evidence tends to show that the road has been used continuously since 1939 as the primary, and until recently, the sole means of ingress and egress from the plaintiffs' property. The road has been used by all types of vehicular traffic and by guests, invitees and business associates of the plaintiffs and their predecessors in title. Telephone and power lines have been built beside the road, and the meter reader for the local power company has used the road. Further, affidavits and oral testimony tended to show that while a new road into their property was recently built by plaintiffs, it is impassable in inclement weather due to its steep incline and many drop-offs, and for this reason plaintiffs have been unable to secure carrier contracts guaranteeing delivery to the...