12 S.E. 983 | N.C. | 1891
This case was before this Court by a former appeal (R. R. v. R. R.,
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 also in possession, alleging and claiming the same to be rightful, it would not only be irregular, but violative of common right to grant a write 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. *218
(307)