Legal Opinion

Perry v. Tupper

Supreme Court of North Carolina

Decided January 15, 1874PublishedCited by 20 opinions

Civil actioN, commenced in a Justice’s Court to recover the possession of a certain house and lot, tried before Watts, J., at the January Term, 18J4, of Waxe Superior Court.

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Civil actioN, commenced in a Justice’s Court to recover the possession of a certain house and lot, tried before Watts, J., at the January Term, 18J4, of Waxe Superior Court. Upon the hearing, the defendant’s counsel moved to quash the proceedings and for a writ of restitution of the laud, of which the plaintiffs had obtained possession under a writ of possession issued between the time when the appeal was prayed and the appeal bond given — the morning thereafter — on the ground of the want of jurisdiction of the Justice. The plaintiff made no resistance to the motion to quash, which was…

1Opinion of the CourtPearson, 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 *539issued 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…

2Cited by20 opinions

  1. Noville v. . DewSupreme Court of North Carolina · 1886
  2. Wm. Devries & Co. v. SummitSupreme Court of North Carolina · 1882
  3. Manix v. . HowardSupreme Court of North Carolina · 1880
  4. People's Sec. Bank v. SandersonSouth Dakota Supreme Court · 1909
  5. Lytle v. . LytleSupreme Court of North Carolina · 1886

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