Royal v. . Thornton

63 S.E. 1040, 150 N.C. 293, 1909 N.C. LEXIS 45

• Court: Supreme Court of North Carolina
• Decided: March 17, 1909
• Status: Published

Opinion

Connor, J.

Tbe statute (Revisal, sec. 814) provides that the judges of the Superior Court shall have jurisdiction to grant injunctions and issue restraining orders in all civil actions which are authorized by law, provided that a judge bolding a special term in any county may grant an injunction or issue a restraining order, returnable before himself, in any case which be may have jurisdiction to bear and determine, under the commission issued to him, and fbe same shall be returnable as directed by the judge in the order. The only question presented, therefore, is whether Judge Adams bad, by virtue of bis commission to-bold the special term of Sampson County, beginning 14 December, 1908, for the trial of civil causes, jurisdiction “to hear and determine” tbis case. Under the Code of Civil Procedure, defendant was not called upon to answer the complaint until the last day of the February Term, 1909. How, tKen, could Judge Adams “bear and determine” the case? Tbe Legislature baying tbus limited bis jurisdiction to make restraining orders return-. able before bimself in Sampson County, we bave no power to extend the jurisdiction. He bad the right to make the original order, but it should have been returnable before the resident judge of the district or the judge bolding the courts of the district, either by assignment or exchange. Revisal sec. 815; Hamilton v. Icard, 112 N. C., 589. There was error in making the order returnable before bimself. Tbe order continuing the injunction will be reversed, without prejudice to the plaintiff to apply to the judge having jurisdiction for a restraining order, upon the affidavit filed, or a new one, as be may be advised. Of course, by consent, any judge may grant and continue restraining orders. There is Error.