Perry v. Tupper

70 N.C. 538

Opinion

Pearson, C. J.

Whenever a party is put out of possession by process of law, and the proceedings are adjudged void, an order for a writ of restitution is a part of the judgment.

Mr. Fowle says: “The affidavit on which the summons issued states that the defendant entered as a trespasser, and the motion to quash for want of jurisdiction admits the fact, that the defendant is a trespasser. Will the Court countenance a tresspasser by restoring the possession to him ?”

Kopiy. The proceeding is not simply void for some irregularity, but was void ah initio, for the want of jurisdiction ; so thejolaintiffs get into possession by an abuse of the process of the law. Can the Court countenance an abuse of the process of the law, by permitting the plaintiffs to retain the fruit of their wrongful act ? The only mode to prevent such abuses of judicial process is to put the parties in statu quo.

In The King v. Wilson, 3 Adol. and Ell., 817, 30 Eng., C. S. rep. 228, it is said by the Court: “It has been said, that the Court will not do this, (that is, order a writ of restitution) unless the party unlawfully dispossessed, should appear to have title to the premises; a most inconvenient inquiry, upon affidavits, and a course full of danger to the public peace as protecting the executing of an unlawful sentence.”

In Watson v. Trustees of Floral College, 2 Jones, 212, the Court say : “We are satisfied that the general rule has been to grant the writ of restitution, upon quashing the proceedings on a conviction under the statute of Forcible Entry and De-tainer.” And the Court, inasmuch as “ the writ is notdemandable, ex rigove jurisunder the very peculiar circumstances of the case brought to the notice of the Court by the finding of the inquisition, and the petition of the defendant for the writ of recorclari, held that the Judge in the Court below ought to have refused to order the writ of restitution.

In Mitchell v. Flemming, 3 Ired., 128, the proceedings being quashed, the writ of restitution was ordered as a matter of course.

In our ease, without giving any reason, or finding any fact, and without evidence, the Judge says: “ eeee volof and refuses to make an ordinary part of the judgment quashing the proceed-

The error is too palpable to admit of discussion. Dulin v. Howard, 66, N. C., 433.

Judgment reversed. This will be certified to the end that a writ of restitution may issue.

Pee Cueiam. Judgment reversed.