81 N.C. 38 | N.C. | 1879
This action was brought before a Justice of the Peace under the landlord and tenant act, to recover possession of land and judgment rendered for plaintiff. The case was taken to the Superior Court by writ of recordari, and at Spring Term, 1877, before Moore, J., the defendant suggested that as the title to the land was in controversy, the Justice of the Peace had no jurisdiction, which question of jurisdiction had been raised before the Justice verbally, the defendant having no counsel present and the Justice refusing to examine any witnesses touching the matter. And under the suggestion of the Court to the counsel of defendant, the case was remanded to the Justice's Court to enable *44
defendant to answer in writing. The Justice took no action in the premises, and thereupon the defendant obtained a mandamus compelling him to proceed and try the case. In obedience thereto he notified the parties to appear before him, when the defendant asked leave to file an answer in writing raising the question of jurisdiction, which was refused and defendant appealed to Fall Term, 1877, when the motion for leave to file the answer aforesaid was allowed by Eure, J., and the plaintiff appealed. (See same case,
In accordance with this decision the answer was put in in the Superior Court, and thereupon the plaintiff proposed to submit to a nonsuit. 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 nonsuit, 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 for the injury done. For this purpose the cause *45 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.
"We think," say the Court in Dulin v. Howard,
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.
Affirmed.
Cited: Lytle v. Lytle,