Lane v. . Morton

Smith, C. J. When the case was before us at January term, 1878, (78 N. C., 7,) it was decided that the defendant might with consent of the court, file his answer in the superior court, which he had offered to do, and was not allowed to do while it was pending before the justice. In accordance with this decision the answer was put in in the superior court, and thereupon the plaintiff proposed to submit to a non-suit. This was resisted by the defendant, who moved for a writ of restitution of the lands of which he had been dispossessed by a writ of possession before granted the plaintiff, and that a jury might be impaneled to-assess his damages by reason thereof. The court refused to allow the non-suit, and adjudged that a writ of restitution issue, and that issues be framed for trial at the next term as to the damages sustained by the defendant for rents and profits. From this judgment the plaintiff appeals. We see no error in the record. The defendant had been wrongfully deprived of the possession of his lands by the action of the justice in an early stage of the proceedings, and when they were depending before him, and it was the right of the defendant to have, and the duty of the court, before ending the action, to restore that possession and to allow compensation to him fpr the injury done. For this purpose the cause was properly retained, and, to meet the plaintiff’s suggestion that he was unprepared to try the question of damages, an issue ordered to be made up to be tried before a jury at next term. The ruling is supported by authority. *41 “We tbinlc,” say the court in Dulin v. Howard, 66 N. C., 433, the facts of which are similar, “ that the defendant was entitled not only to restitution of the possession, but if he had asked for it, to an enquiry as to the damages he had sustained by being deprived of it.” 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. Perry v. Tupper, 70 N. C., 538. There is no error, and this will be certified to the end that the writ of restitution be awarded, and proceedings had in the cause according to law as declared in this opinion. No error. Affirmed.