Grissett v. Smith, 61 N.C. 297, 1 Phil. 297 (1867)

June 1867 · Supreme Court of North Carolina

61 N.C. 297, 1 Phil. 297

JUDSON D. GRISSETT v. ALVA SMITH.

WAen a final judgment is rendered in the Supreme Court upon an appeal from a final judgment in the Superior Court, the latter court has power to issue no other process in the case than an execution for its own costs.

Motion, for an execution for costs, and a writ of re-restitution upon a certificate of the judgment of the Supreme Court, in a case of forcible entry and detainer, before Fowle, J., at Spring Term, 1867, of the Superior Court of Columbus.

This case was before this court at the last term, (ante p. 164,) upon an appeal from a judgment of the Superior Court of Columbus, at Fall Term, 1866, quashing the proceedings before the justices and ordering a writ of re-restitution for the plaintiff in the recordari, by which the proceedings were carried up. The judgment of the court below was affirmed by the Supreme Court, with costs.

The certificate of the decision having been transmitted to the Superior Court, the plaintiff’s counsel made the motions, as above, for an execution for costs, and a writ of re-restitution. It appeared from the record that the plaintiff’s term in the premises expired January 1st, 1867, and his Honor refused to grant the writ, assigning that as his reason for the refusal. The motion for execution for cost's was allowed. The plaintiff appealed.

Person, for the appellant.

Moore, contra.

1. The court below, to which the decision of the Supreme Court was certified, exercised all its powers when it ordered execution to issue for the costs incurred in that court. Rev. Code, c. 33, ss. 6 and 21.

2. But if the court below had possessed the power to order a writ of re-restitution, it should not have exercised it.

3. The plaintiff’s term had expired, and with it the right of possession. Wilson v. Rail, 13 Ire., 484; Watson v. Trustees F- College, 2 Jon., 211; Bac. Abr., F. & D. — G.

To ask of the law to be now re-possessed of land which the petitioner admits is no longer his, but belongs to another, is a plain request of the law to justify what it forbids, namely : entries into land without title. The plaintiff’s case begins with a prayer to be allowed to keep his own land, and ends with a prayer to be allowed to enter on the lands of another!

Battle, J.

The refusal of his Honor in the court below to order the issue of the writ of re-restitution was right and proper; but not for the reason assigned by him. The first appeal took the whole case to the Supreme Court, and the judgment rendered therein was final; and any execution, or process in the nature of an execution, except for the costs incurred in the Superior Court, must issue from the Supreme Court. The certificate of the decision of that court in the present case was transmitted to the Superior Court by virtue of the provision, contained in the Eev. Code, c. 33, s. 21, for the purpose of having the costs of the latter court taxed therein, and an execution therefor issued therefrom. Any other execution upon a final judgment in the Supreme Court must issue in the first instance from that court, though it may, in the discretion of the court, be made returnable to the Superior Court, which may enforce obedience to it, and may, if necessary, issue new or further execution or process thereon. See Eev. Code, c. 33, s. 6.

When the appeal to the Supreme Court is from an interlocutory judgment at law of a Superior Court, the former -court cannot enter any judgment reversing, affirming or modifying the judgment so appealed from, but must cause its decision to be certified to the court below, with instructions to proceed upon such judgment, or to reverse or modify the same, according to the said opinion; and the court below shall enter upon its records the opinion at length, and proceed in the cause according to the instructions. See Eev. Code, c. 33, s. 14.

In the case now before us the first appeal was from a final, and not an interlocutory, judgment of the Superior Court, and the judgment of this court on such appeal was final. The motion for the writ of re-restitution ought to have been made here, and not in the Superior Court, which, as indeed appears from the certificate sent down to it, had no authority to issue any execution except one for the costs of that court.

The judgment from which the present appeal was taken must be affirmed.

Per Curiam. Judgment affirmed.