ERWIN MILLS, Inc.
v.
TEXTILE WORKERS UNION OF AMERICA, CIO, et al.
No. 752.
Supreme Court of North Carolina.
February 1, 1952.*814 Fuller, Reade, Umstead & Fuller, and James L. Newsom, all of Durham, for plaintiff, appellee.
Robert S. Cahoon, Atlanta, Ga., for defendants, appellants.
DEVIN, Chief Justice.
The action was instituted by plaintiff April 27, 1951, against the Textile Workers *815 Union of America, an unincorporated association, and the named individual defendants, to restrain them from threatening, abusing and interfering with employees desiring to work in plaintiff's mills during a labor strike. The strike had been in progress since April 2, 1951. Process was duly served on the defendants. On the same date, April 27, 1951, upon the verified complaint used as an affidavit, a temporary restraining order was issued by the court restraining defendants from the commission of the threatened acts of violence and intimidation alleged. The restraining order was duly served and copies posted at the mill gates and conspicuous places in the vicinity.
Three days later, April 30, the court issued an order to the individual defendants to show cause why they should not be held in contempt for violation of the court's restraining order. This order recited that the restraining order had been duly served and posted as directed, and that it appeared to the court "from the affidavits" that the defendants (naming them) had "wilfully done certain acts and things therein prohibited," and thereupon the respondents were ordered to appear May 2 and show cause why they should not be punished as for contempt of court. On that date, May 2, counsel for respondents appeared before the judge and moved for a postponement of the hearing. At this time copies of the eight affidavits relied on by plaintiff were delivered to respondents' counsel. Three of these affidavits bore date April 30, and the others May 1 and May 2. The hearing was continued to May 4. May 4 respondents appeared and demurred, and moved to dismiss the proceeding for that the court was without jurisdiction, and for the further reason that the order as served did not advise them of the nature of the charges against them. The demurrer and motion to dismiss were overruled and respondents excepted.
The matter was then heard on the affidavits filed by plaintiff and those contra filed by respondents.
The respondents objected to each of the affidavits offered by plaintiff and moved that certain portions of the plaintiff's affidavits, as indicated and noted, be stricken from the evidence and from the record. The court overruled all of respondents' objections to the competence of matters set out in the plaintiff's affidavits, and upon the evidence afforded by the affidavits made the findings of fact upon which judgment was rendered against the appealing respondents. The judgment stated the acts committed by appellants and found that these acts were done for the purpose of intimidating, threatening and abusing employees of plaintiff and dissuading them from continuing to work, and that the five appellants had wilfully and contemptuously violated the restraining order after notice thereof, and the court thereupon imposed punishment upon each of them.
The appellants interposed plea to the jurisdiction on the ground that the action arose out of a labor dispute between employees and a corporation engaged in interstate commerce, and that exclusive jurisdiction of matters connected therewith was by Act of Congress conferred upon the National Labor Relations Board. 29 U.S. C.A. § 151 et seq. But the fact that the acts complained of in this action occurred during a labor dispute would not deprive the state court of the power by appropriate action to protect persons and property from threatened unlawful acts of violence injurious to the rights of its citizens, as was recently decided by this Court in Erwin Mills, Inc., v. Textile Workers Union of America, 234 N.C. 321, 67 S.E.2d 372, and Royal Cotton Mill Co. v. Textile Workers Union of America, 234 N.C. 545, 67 S.E.2d 755. The police power of the state to suppress violence and to preserve order was not superseded by the Act of Congress. Nor would the subsequent filing by the defendants of petition for removal to the U. S. District Court (later remanded) prevent the state court from continuing proceedings to maintain respect for its orders and to punish contemptuous violation thereof. Green v. Griffin, 95 N.C. 50; Herring v. Pugh, 126 N.C. 852, 36 S.E. 287; Safie *816 Mfg. Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577; Elliott v. Swartz Industries, 231 N.C. 425, 57 S.E.2d 305; Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797; 12 A.J. 433.
While the order to respondents to show cause should have advised them of the specific charges alleged against them, this irregularity would not render the proceeding void where counsel for respondents appeared and was furnished copies of the affidavits containing the charges and allegations against them in time to present their defense, and the respondents subsequently filed affidavits in denial. Presumably the affidavits set out in the record which bore the same date as the order were presented to the court and formed the basis upon which the order was issued. G.S. § 5-7; Erwin Mills, Inc., v. Textile Workers Union of America, supra; In re Odum, 133 N.C. 250, 45 S.E. 569.
But we think the court was in error in overruling respondents' exceptions to incompetent, hearsay and prejudicial evidence contained in plaintiff's affidavits which were being considered by the court.
Ordinarily when a Superior Court Judge hears evidence in the form of affidavits in order to decide questions of fact, he is presumed to eliminate from his consideration immaterial and incompetent averments, and those which in other respects are improperly inserted. Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639; Cameron v. Cameron, 232 N.C. 686, 61 S.E.2d 913. But where at the time of the hearing incompetent matters are specifically pointed out and objected to, and motion made to strike them from the evidence, and the court overrules the motions in each instance, the presumption that the court did not consider the objectionable matters in making his decision would not be available to sustain the findings. For this reason we think the hearing should be remanded for consideration of the competent evidence in passing upon the motion to punish appellants as for contempt.
Error and remanded.