Elliott v. Swartz Industries, Inc.

Per Curiam. The 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 “greaves” falling to the bottom and oils and by-products thus *426 recovered. It is alleged tbat “offensive, 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,” and tbat by reason thereof tbe plaintiffs are forced to inbale tbe offensive odors to tbeir great damage. After tbe filing of plaintiffs’ 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. At 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. Tbe 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 “to emit foul, sickening, noxious and offensive odors until a final determination of this cause.” Tbe defendant excepted to tbe signing of tbe order and gave notice of appeal. Tbe 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. Tbe want of logical connection between defendant’s 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. Tbe continuance of tbe case was within tbe discretion of tbe court,— 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. “Abuse of discretion is more apt to be shown in granting a continuance, and in tbe dilatory administration of justice.” S. v. Sultan, 142 N.C. 569, 54 S.E. *427 841. And from Green v. Griffin, 95 N.C. 50, 52, we find applicable precedent: “The 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.” The temporary restraining order does not prohibit any act except that which would be in any case a violation of legal duty. The orders appealed from must be affirmed. The appeal is dismissed. Appeal dismissed.