Schloss v. Jamison, 249

• Decision Date: 12 December 1962
• Docket Number: No. 249,249
• Citation: 128 S.E.2d 590,258 N.C. 271
• Parties: S. A. SCHLOSS, Jr., Florette Schloss Wile and Mary Jane Silverman, partners, trading as Schloss Poster Advertising Company v. W. H. JAMISON, Acting Superintendent of Building Inspection for the City of Charlotte and the City of Charlotte, a municipal corporation.
• Court: North Carolina Supreme Court

Page 590

128 S.E.2d 590

258 N.C. 271

S. A. SCHLOSS, Jr., Florette Schloss Wile and Mary Jane

Silverman, partners, trading as Schloss Poster

Advertising Company v. W. H. JAMISON, Acting Superintendent of Building Inspection

for the City of Charlotte and the City of

Charlotte, a municipal corporation.

No. 249

Supreme Court of North Carolina.

Dec. 12, 1962

John T. Morrisey, Sr., Charlotte, for defendant appellants.

Hunter M. Jones and James O. Cobb, Jr., Charlotte, for plaintiff appellees.

PARKER, Justice.

Defendants have only one assignment of error, and that is the court erred in signing the order granting a temporary injunction. Defendants have no exceptions to the findings of fact and to the conclusions of law.

Where no exceptions have been taken to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal. Milwaukee Insurance Co. v. McLean Trucking Co., 256 N.C. 721, 125 S.E.2d 25; Goldsboro v. R. R., 246 N.C. 101, 97 S.E.2d 486. However, the exception to the signing of the order presents the questions whether the facts found are sufficient to support the conclusions of law and the order granting a temporary injunction entered pursuant thereto, and whether there is error of law appearing on the face of the record proper. Logan v. Sprinkle, 256 N.C. 41, 123 S.E.2d 209; Webb v. Gaskins, 255 N.C. 281, 121 S.E.2d 564; Strong's Supplement to Vol. I of the N.C. Index, Appeal and Error, sec. 21, where numerous cases are cited.

The right of plaintiffs to test the challenged provision of the Charlotte city code by injunction is not controverted. There is ample authority for the suit. G. I. Surplus Store, Inc., v. Hunter, 257 N.C. 206, 125 S.E.2d 764; Clinard v. Winston-Salem, 217 N.C. 119, 6 S.E.2d 867, 126 A.L.R. 634; Loose-Wiles Biscuit Co. v. Sanford, 200 N.C. 467, 157 S.E. 432.

The injunctive relief here sought is not merely auxiliary to the principal relief demanded, but it is the relief, and a permanent injunction is demanded. In our opinion, the admissions in the answer of facts alleged in the complaint and the judge's detailed findings of fact are sufficient to show that plaintiffs have made out an apparent case that their property rights will suffer irreparable damage by the threatened enforcement of an alleged unconstitutional provision of the Charlotte city code, if the enforcement of this challenged provision of the city code is not restrained until the hearing on the merits, that the questions presented are grave, and that there is a reasonable apprehension that injury to plaintiffs will be certain and disastrous, if the application for a temporary injunction be denied and the final judgment be in their favor, while if the temporary restraining order be continued to the final hearing, the injury to defendants, even if the final judgment be in their favor, will be inconsiderable as compared with plaintiffs' damage if they should finally prevail. The judge correctly preserved the matter intact until the suit can be heard upon its merits. Little Pep Delmonico Restaurant, Inc. v Charlotte, 252 N.C. 324, 113 S.E.2d 422; Huskins v. Yancey Hospital, Inc., 238 N.C. 357, 78 S.E.2d 116 (Interlocutory injunctions); Clinard v. Winston-Salem, supra; Dixie Poster Advertising Co. v. Asheville, 189 N.C. 737, 128 S.E. 149; Marshall v. Commissioners, 89 N.C. 103; Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S.Ct. 256, 73 L.Ed. 972.

The sole question presented to the judge on the show cause order was whether an interlocutory injunction should be granted until the hearing on the merits. Judge Copeland granted the interlocutory injunction upon a showing of equitable grounds for injunctive relief, and then went further and concluded as a matter of law that the challenged portion of the Charlotte city code 'violates constitutional provisions pleaded in the complaint.' Union Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E.2d 792, quotes 16 C.J.S. Constitutional Law, § 95, as follows: "The constitutionality of a statute will not be determined on the question being raised in a collateral proceeding, or on preliminary motions, or interlocutory order * * *."

This Court said in Patterson v. Hosiery Mills, 214 N.C. 806, 200 S.E. 906:

'The judge hearing the order to show cause why the injunction should not be continued to the hearing had no jurisdiction to hear and determine the...