Durham & Northern Railroad v. North Carolina Railroad

MekriMON, C. J.: Generally the writ of restitution lies in favor of a party after a judgment or order of the Court, under and in pursuance of which he has been put out of possession of property, has been reversed, set aside or adjudged void, to restore him to the possession of which he had been so deprived. The law will not allow its process granted and enforced erroneously, by improvidence, mistake or abuse, to work injury to a party. It will always and promptly, in appropriate cases, restore the party prejudiced by its process to the like possession, plight and condition as he had at the time the same was executed, as nearly and as completely as practicable. The Court seeks, and is anxious to do justice, 306 and as well to preserve its own integrity and honor. Hence, it is said that “if a judgment be reversed, the party shall be restored to all that he has lost by occasion of the judgment, and a writ of restitution shall be awarded.” Perry v. Tupper, 70 N. C., 538; Lytle v. Lytle, 04 N. C., 522; Todd’s Practice, 1186; Cro. Jac., 698; Roll. Ab., 778. But here it does not appear that the defendants were put out of possession or prejudiced by the process of the Court. On the contrary, the Court finds that they were not in possession of the land in question when the proceeding began, and that the plaintiff did not obtain possession of the same by virtue of the Court’s process, but in an entirely different way, with which the Court had'no connection whatever. Besides, it appears from the record of the proceedings that at the time the same began the plaintiff was in possession of the land, and alleged its right to have such possession. The defendants denied such right, and alleged that such possession was wrongful, and that they owned the land and were entitled to possession thereof. Obviously, these allegations raised questions to be litigated, but as it turned out, not in this .proceeding, because it could not be sustained. But it thus appears that the defendants were not put 'out of, nor was the plaintiff put in possession of the land by the judgment, order or process of the Court. The defendants were left free to enforce their rights to the land and the possession thereof in some lawful way. As they were not put out of possession by the process of the Court, and the plaintiff was so in possession, alleging and claiming the same to be rightful, it would not only be irregular, but violative of common right to grant a writ of restitution upon simple motion, and without allowing the plaintiff to litigate its right in some appropriate way prescribed by law. A writ so granted would not be a writ of restitution! Affirmed.