Wilson v. Newburgh

Mr. Justice Van Orsdel delivered tbe opinion of tbe Court: It is contended by counsel for appellee that tbe appeal should have been prosecuted from tbe order of June 19, 1913, denying tbe first motion. The first motion was filed before the mandate of this court bad been acted upon by tbe court below, and was therefore premature. Gregg v. Forsyth, 2 Wall. 56, 17 L. ed. 782. But there was nothing in tbe order of tbe court to prevent appellant from at any time renewing tbe motion. Tbe case, therefore, is properly here. [409] Upon vacation of the former judgment and the granting of a new trial, the case stands as originally. The former trial and all that occurred in connection therewith is a mere nullity. Appellant was dispossessed under a writ issued upon a void judgment, and, until legally dispossessed, she is entitled to possession. It is well settled that where, in ejectment, a party in possession has been ejected from the premises under a judgment found upon appeal or writ of error to be erroneous, the party so dispossessed is entitled to restitution of the promises. The rule, which seems to be without exception, is stated in Gregg v. Forsyth, supra, as follows: “The plaintiffs in error were entitled to restitution, both of the premises and costs, on the reversal of the judgment, and the modern practice is to apply to the court, on the coming down of the mandate from the appellate tribunal and the entry of the judgment of reversal, for a writ of restitution, setting forth the facts entitling the party to the remedy, and giving notice of the motion to the adverse party.” The order of the court requiring appellee to pay into the registry of the court a fixed monthly rental pending further litigation is not a substitute for possession which appellant was required to accept. Her right to restitution was one which she could demand and to which she was legally entitled. “The writ of possession must issue as a matter of course. The defendant having been put out of possession by an abuse of the process of the law, the .law must be just to itself, as well as to the defendant, by restoring him to that of which he was wrongfully deprived. When the defendant is restored to the possession, then, and not till then, will the court be in condition in which it can, honorably to itself, pass upon the further rights of the parties.” Perry v. Tupper, 71 N. C. 385, 386. The order is reversed, with costs, and the cause is remanded, with directions to grant the order of restitution, as moved by appellant. Reversed.