State Ex Rel. Trotter v. Mitchell

Supreme Court of North Carolina

State Ex Rel. Trotter v. Mitchell

20 S.E. 386, 115 N.C. 190

CourtSupreme Court of North Carolina

DecidedSeptember 5, 1894

StatusPublished

Cited by1 cases

This text of 20 S.E. 386 (State Ex Rel. Trotter v. Mitchell) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Trotter v. Mitchell, 20 S.E. 386, 115 N.C. 190 (N.C. 1894).

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Opinion

Pee Cueiam:

We think that the order of removal on the ground that the relator had failed to renew his bond, was, under the circumstances of this case, not only irregular but void. The relator’s office of Public Administrator was a property fight, and it is well settled that he cannot be deprived thereof but by the law of the land. In Vann v. Pipkin, 77 N. C., 408, it was held that although the statute declared that the failure of a Sheriff to renew his bond and produce receipts, &c., should create a vacancy, such vacancy was not in fact created until so declared by a competent tribunal, and that no such vacancy “ can be declared until the alleged delinquent shall have had due notice and a day in court if in reach of its process.” See also Hoke v. Henderson, 4 Dev., 1. The judgment of the Clerk, without any pretencé of notice, was not only irregular but absolutely void. Jennings v. Stafford, 1 Iredell, 404. There was, therefore, no error in the ruling of the Court. The judgment of the Court, as we construe it, did not deprive the Clerk of the right to require a renewal of the bond, or to remove the relator for any other proper cause, and the objection upon this ground is untenable.

Affirmed.

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Pee Cueiam:

We think that the order of removal on the ground that the relator had failed to renew his bond, was, under the circumstances of this case, not only irregular but void. The relator’s office of Public Administrator was a property fight, and it is well settled that he cannot be deprived thereof but by the law of the land. In Vann v. Pipkin, 77 N. C., 408, it was held that although the statute declared that the failure of a Sheriff to renew his bond and produce receipts, &c., should create a vacancy, such vacancy was not in fact created until so declared by a competent tribunal, and that no such vacancy “ can be declared until the alleged delinquent shall have had due notice and a day in court if in reach of its process.” See also Hoke v. Henderson, 4 Dev., 1. The judgment of the Clerk, without any pretencé of notice, was not only irregular but absolutely void. Jennings v. Stafford, 1 Iredell, 404. There was, therefore, no error in the ruling of the Court. The judgment of the Court, as we construe it, did not deprive the Clerk of the right to require a renewal of the bond, or to remove the relator for any other proper cause, and the objection upon this ground is untenable.

Affirmed.

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Bluebook (online)

20 S.E. 386, 115 N.C. 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-trotter-v-mitchell-nc-1894.

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