Bobbitt, J.
The demurrer tests the sufficiency of the complaint. The rules applicable have been often stated and are well settled.
Pressly v. Walker,
238 N.C. 732, 78 S.E. 2d 920, and cases cited. Our task is to determine whether plaintiffs, upon the
facts
alleged, liberally construed in their favor, have a cause of action.
The complaint and exhibits show that, while legal title to the property vests in defendant, the Fayetteville, Orange and Wilmington Presbyteries of the North Carolina Synod of the Presbyterian Church in the United States are the beneficial owners of defendant, and through trustees elected by them are in possession and control of its property and assets. As to this, plaintiffs’ Exhibit D is explicit; and we find nothing in plaintiffs’ allegations or exhibits in conflict therewith. No facts are alleged to support a contention that the defendant, its officers or trustees have any legal rights they may assert
against
the owning and controlling Presbyteries.
There is no need to determine whether the establishment, maintenance and operation of “a Senior Co-educational College in the Eastern Section of North Carolina” would be a material variance or departure from the provision in the 1907 charter that defendant “shall maintain and conduct, at some place in North Carolina, a college of high grade for the education of women.” Should there be a properly authorized consolidation, the corporate powers of the consolidated corporation will be as set forth in its charter.
Plaintiffs are explicit in their allegations that the Fayetteville, Orange and Wilmington Presbyteries have authorized the consolidation of three colleges, to wit, Flora Macdonald, Peace and Presbyterian Junior. There is no allegation that the three Presbyteries have authorized the defendant to participate in any other consolidation.
Plaintiffs do allege, upon information and belief, that Peace will not join in the consolidation. If so, upon the facts alleged, the consolidation authorized by defendant’s three controlling Presbyteries cannot be consummated; for defendant has no authority to enter any consolidation except a consolidation of Flora Macdonald, Peace and Presbyterian Junior colleges.
We advert to plaintiffs’ allegation that the Synod on June 26, 1957, adopted a resolution
“'purporting
to empower and direct” (Italics added) the trustees of Flora Macdonald, Peace and Presbyterian Junior colleges “to proceed immediately with the execution of an Agreement of Consolidation which will accomplish the merger and consolidation of said three corporations into a single new corporation . . .” Aside from the fact that this resolution, as alleged, refers solely to a consolidation of the
three
colleges,
the three Presbyteries,
not the Synod, own and control Flora Macdonald College. Upon the facts alleged, resolutions of the Synod are recommendatory, not authoritative.
Thus, upon the facts alleged, it appears: (1) the three controlling Presbyteries have authorized a consolidation that includes Peace as well as Flora Macdonald and Presbyterian Junior; (2) Peace will not join in the consolidation; and (3) defendant has no authority to enter into a consolidation agreement that does not include Peace. Hence, presently there is a deadlock.
Conceding plaintiffs’ status as trustees would entitle them to enjoin a consolidation by defendant undertaken or threatened by its officers or by its trustees in violation of the authority conferred by the three Presbyteries, plaintiffs do not allege that defendant’s officers or trustees have undertaken or threatened such action. Nor do plaintiffs allege that defendant’s officers or trustees have undertaken or threatened any action whereby the
present operation of Flora Macdonald College will be discontinued. Indeed, plaintiffs, who as trustees presumably have knowledge of all relevant facts, make
no
allegations as to what, if anything, the officers or trustees of defendant have done.
In 43 C.J.S., Injunctions Sec. 21, this statement, apposite here, •appears: “. . . an injunction will not lie to restrain one from doing what he is not attempting and does not intend to do . . .” Since the facts alleged disclose no unlawful action or threatened unlawful action by defendant’s officers or trustees, the complaint fails to allege facts sufficient to constitute a cause of action.
Plaintiffs allege facts relating to the value of defendant’s property, the adequacy of its financial support, its traditions and record of service, the interest and loyalty of its alumnae and friends, etc. Based thereon, they argue forcefully and eloquently that Flora Macdonald College should be allowed to operate at Red Springs, North Carolina, substantially as heretofore, without involvement, now or later, in any merger or consolidation that would materially affect the
status quo.
Suffice to say, whether the consolidation presently authorized or any other consolidation that may be authorized is wise or prudent is for determination by the three controlling Presbyteries, not by the court. The aid of the court may be invoked only to redress or to prevent injury caused or threatened by
unlawful
conduct.
Whether G.S. 55-171, 172 and 173, which relate expressly to the consolidation of “any two or more . . . educational . . . corporations not under the patronage and control of the State,” have been repealed or superseded, in whole or in part, by the Business Corporation Act (Ch. 1371, Session Laws of 1955) or by the Non-Profit Corporation Act. (Ch. 1230, Session Laws of 1955), both effective on and after July 1, 1957, does not arise on this appeal.
If, as plaintiffs contend, defendant did not “distinctly specify the grounds of objection to the complaint,” “it might well have been disregarded” by the court below.
Griffin v. Bank,
205 N.C. 253, 171 S.E. 71. G.S. 1-128 applies to all demurrers, written or oral.
Seawell v. Cole,
194 N.C. 546, 140 S.E. 85. But, as stated by Varser, J., in
Snipes v. Monds,
190 N.C. 190, 129 S.E. 413: “Even after answering in the trial court, or in this Court, a defendant may demur
ore tenus,
or the Court may raise the question
ex mero motu
that the complaint does not state a cause of action.” Also, see G.S. 1-134;
Garrison v. Williams,
150 N.C. 674, 64 S.E. 783, and cases cited.
Since defendant has sufficiently specified its grounds of objection to the complaint in its demurrer
ore tenus
filed in this Court, it becomes immaterial that the record does not show the grounds of objection, if any, presented to and considered by
Judge Nimocks. It appearing that the demurrer should be sustained, Judge Nimocks’ ruling to that effect is affirmed.
However, we are constrained to hold that it was error to dismiss the action. Where there is a defective statement of a good cause of action, the complaint is subject to amendment; and the action should not be dismissed until the time for obtaining leave to amend has expired. G.S. 1-131.
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Bobbitt, J.
The demurrer tests the sufficiency of the complaint. The rules applicable have been often stated and are well settled.
Pressly v. Walker,
238 N.C. 732, 78 S.E. 2d 920, and cases cited. Our task is to determine whether plaintiffs, upon the
facts
alleged, liberally construed in their favor, have a cause of action.
The complaint and exhibits show that, while legal title to the property vests in defendant, the Fayetteville, Orange and Wilmington Presbyteries of the North Carolina Synod of the Presbyterian Church in the United States are the beneficial owners of defendant, and through trustees elected by them are in possession and control of its property and assets. As to this, plaintiffs’ Exhibit D is explicit; and we find nothing in plaintiffs’ allegations or exhibits in conflict therewith. No facts are alleged to support a contention that the defendant, its officers or trustees have any legal rights they may assert
against
the owning and controlling Presbyteries.
There is no need to determine whether the establishment, maintenance and operation of “a Senior Co-educational College in the Eastern Section of North Carolina” would be a material variance or departure from the provision in the 1907 charter that defendant “shall maintain and conduct, at some place in North Carolina, a college of high grade for the education of women.” Should there be a properly authorized consolidation, the corporate powers of the consolidated corporation will be as set forth in its charter.
Plaintiffs are explicit in their allegations that the Fayetteville, Orange and Wilmington Presbyteries have authorized the consolidation of three colleges, to wit, Flora Macdonald, Peace and Presbyterian Junior. There is no allegation that the three Presbyteries have authorized the defendant to participate in any other consolidation.
Plaintiffs do allege, upon information and belief, that Peace will not join in the consolidation. If so, upon the facts alleged, the consolidation authorized by defendant’s three controlling Presbyteries cannot be consummated; for defendant has no authority to enter any consolidation except a consolidation of Flora Macdonald, Peace and Presbyterian Junior colleges.
We advert to plaintiffs’ allegation that the Synod on June 26, 1957, adopted a resolution
“'purporting
to empower and direct” (Italics added) the trustees of Flora Macdonald, Peace and Presbyterian Junior colleges “to proceed immediately with the execution of an Agreement of Consolidation which will accomplish the merger and consolidation of said three corporations into a single new corporation . . .” Aside from the fact that this resolution, as alleged, refers solely to a consolidation of the
three
colleges,
the three Presbyteries,
not the Synod, own and control Flora Macdonald College. Upon the facts alleged, resolutions of the Synod are recommendatory, not authoritative.
Thus, upon the facts alleged, it appears: (1) the three controlling Presbyteries have authorized a consolidation that includes Peace as well as Flora Macdonald and Presbyterian Junior; (2) Peace will not join in the consolidation; and (3) defendant has no authority to enter into a consolidation agreement that does not include Peace. Hence, presently there is a deadlock.
Conceding plaintiffs’ status as trustees would entitle them to enjoin a consolidation by defendant undertaken or threatened by its officers or by its trustees in violation of the authority conferred by the three Presbyteries, plaintiffs do not allege that defendant’s officers or trustees have undertaken or threatened such action. Nor do plaintiffs allege that defendant’s officers or trustees have undertaken or threatened any action whereby the
present operation of Flora Macdonald College will be discontinued. Indeed, plaintiffs, who as trustees presumably have knowledge of all relevant facts, make
no
allegations as to what, if anything, the officers or trustees of defendant have done.
In 43 C.J.S., Injunctions Sec. 21, this statement, apposite here, •appears: “. . . an injunction will not lie to restrain one from doing what he is not attempting and does not intend to do . . .” Since the facts alleged disclose no unlawful action or threatened unlawful action by defendant’s officers or trustees, the complaint fails to allege facts sufficient to constitute a cause of action.
Plaintiffs allege facts relating to the value of defendant’s property, the adequacy of its financial support, its traditions and record of service, the interest and loyalty of its alumnae and friends, etc. Based thereon, they argue forcefully and eloquently that Flora Macdonald College should be allowed to operate at Red Springs, North Carolina, substantially as heretofore, without involvement, now or later, in any merger or consolidation that would materially affect the
status quo.
Suffice to say, whether the consolidation presently authorized or any other consolidation that may be authorized is wise or prudent is for determination by the three controlling Presbyteries, not by the court. The aid of the court may be invoked only to redress or to prevent injury caused or threatened by
unlawful
conduct.
Whether G.S. 55-171, 172 and 173, which relate expressly to the consolidation of “any two or more . . . educational . . . corporations not under the patronage and control of the State,” have been repealed or superseded, in whole or in part, by the Business Corporation Act (Ch. 1371, Session Laws of 1955) or by the Non-Profit Corporation Act. (Ch. 1230, Session Laws of 1955), both effective on and after July 1, 1957, does not arise on this appeal.
If, as plaintiffs contend, defendant did not “distinctly specify the grounds of objection to the complaint,” “it might well have been disregarded” by the court below.
Griffin v. Bank,
205 N.C. 253, 171 S.E. 71. G.S. 1-128 applies to all demurrers, written or oral.
Seawell v. Cole,
194 N.C. 546, 140 S.E. 85. But, as stated by Varser, J., in
Snipes v. Monds,
190 N.C. 190, 129 S.E. 413: “Even after answering in the trial court, or in this Court, a defendant may demur
ore tenus,
or the Court may raise the question
ex mero motu
that the complaint does not state a cause of action.” Also, see G.S. 1-134;
Garrison v. Williams,
150 N.C. 674, 64 S.E. 783, and cases cited.
Since defendant has sufficiently specified its grounds of objection to the complaint in its demurrer
ore tenus
filed in this Court, it becomes immaterial that the record does not show the grounds of objection, if any, presented to and considered by
Judge Nimocks. It appearing that the demurrer should be sustained, Judge Nimocks’ ruling to that effect is affirmed.
However, we are constrained to hold that it was error to dismiss the action. Where there is a defective statement of a good cause of action, the complaint is subject to amendment; and the action should not be dismissed until the time for obtaining leave to amend has expired. G.S. 1-131. But where there is a statement of' a defective cause of action, final judgment dismissing the action should be entered.
Mills v. Richardson,
240 N.C. 187, 81 S.E. 2d 409, and cases cited. But a final judgment dismissing the action should be entered only if the allegations of the complaint
affirmatively disclose
that there is a defective cause of action, i.e., that the plaintiff has no cause of action against the defendant.
Scott v. Veneer Co.,
240 N.C. 73, 81 S.E. 2d 146.
While, for the reasons stated, plaintiffs have not alleged facts sufficient to constitute a cause of action, yet it cannot be said that it appears affirmatively from the presently alleged facts that plaintiffs have no cause of action against the defendant. We do not intimate that there are facts, not presently alleged, which would be sufficient in law to constitute a cause of action. We simply hold that the procedure prescribed by G.S. 1-131 is applicable.
While it was error to dismiss the action, the judgment sustaining the demurrer should have dissolved the temporary restraining order.
Temple v. Watson,
227 N.C. 242, 41 S.E. 2d 738. It is so ordered.
Rheinhardt v. Yancey,
241 N.C. 184, 189, 84 S.E. 2d 655.
The result: The judgment, in respect of the sustaining of defendant’s demurrer, is affirmed; but the portion of the judgment which dismisses the action and taxes plaintiffs with costs is reversed.
As to ruling on demurrer, judgment affirmed; as to dismissal of action, judgment reversed.