State Ex Rel. Caldwell v. Wilson

28 S.E. 554, 121 N.C. 480

• Court: Supreme Court of North Carolina
• Decided: September 5, 1897
• Status: Published

Opinion

On the same day, December 24, the following opinion was handed down:

Clark, J.:

This is a motion by defendant to recall the execution which issued to put the relator in possession of the furniture, rooms and other tangible property belonging to the Railroad Commission. The relator moved to set aside the supersedeas proceedings or adjudge them irregular. We are of opinion that we have no power to set aside the writ of error or pass upon the regularity thereof. We are also of opinion that the judgment of this Court ex proprio vigore placed the relator in possession of the office at the time the judgment was filed. He having already qualified, no process was necessary for that purpose. Ho is in full possession of the same and entitled to exercise its duties and draw the salary -thereto attached, from the date of his appointment. The judgment took effect immediately upon being filed, and is not superseded by the subsequent writ of error, regular or irregular. Foster v. Kansas, 112 U. S., 201. The relator being in office by virtue of the judgment of this Court, any attempt by the defendant to exercise its functions, or to interfere with the full and free exercise thereof by the relator, and any attempt by any one else to interfere by alleged legal process or otherwise, unless and until the Supreme Court of the United States shall reverse the judgment of this Court, will be a contempt of this Court. We decline to make any order recalling the execution. Both motions refused.