28 S.E. 554 | N.C. | 1897
"The State of North Carolina to the Sheriff of Wake County, Greeting: *362
Whereas, in the above entitled cause it was adjudged at this term that the defendant wrongfully withholds possession of the office of railroad commissioner from the plaintiff relator; and that plaintiff relator is entitled to the possession of the same; these are, therefore, to command you forthwith to put the relator in possession of the rooms occupied as offices of the railroad commissioners, in the Agricultural Building on Edenton Street, and known as the railroad commission offices, together with all property, papers and effects appertaining or belonging to said offices, and to oust the defendant from said office and to induct the plaintiff's relator into the same, and you shall make due return thereof on the first day of the next term of this Court."
At 7:10 p. m., 23 December, the defendant filed writ of error and bond, etc., to Supreme Court of the United States, with copies of the writ for the State of North Carolina and for relator.
Upon the opening of the court on 24 December the following proceedings were had:
The plaintiff, through his counsel, William H. Day, moved (orally) in open court to set aside the supersedeas proceedings or adjudge them irregular. And the counsel for the defendant submitted the following motion:
To the honorable the Supreme Court of North Carolina: The defendant respectfully shows to the Court that the judgment herein was rendered in the afternoon of Thursday, 23 December, 1897, that (482) execution thereon was issued by the Clerk of this Court to the Sheriff of Wake County about 5:30 o'clock p. m. on the same day, but has not been executed; that the defendant's counsel sued out a writ of error to the Supreme Court of the United States, which was duly issued by the Clerk of the United States Circuit Court for the Eastern District of North Carolina, and was allowed by the Chief Justice of this Court on the same day; that the defendant also gave a good and sufficient bond in a penal sum fixed by his Honor the Chief Justice, conditioned as asupersedeas bond, who duly approved said bond and signed the citation; that at 7:10 o'clock p. m. the defendant's counsel filed said writ of error and bond in the clerk's office of this Court, and at the same time lodged therein a copy of said writ of error for the State of North Carolina and a copy for L. C. Caldwell. The defendant submits to the Court that the judgment of the Court is superseded, and he respectfully asks that the said execution be recalled.
This 24 December, 1897.
*363R. O. BURTON, SPIER WHITAKER, For Defendant.
On the same day, 24 December, the following opinion was handed down:
This is a motion by defendant to recall the execution which issued to put the relator in possession of the furniture, rooms and other tangible property belonging to the railroad commission. The relator moved to set aside the supersedeas proceedings or adjudge them irregular. We are of opinion that we have no power to set aside the writ of error or pass upon the regularity thereof. We are also of opinion that the judgment of this Court ex proprio vigore placed the relator in possession of the office at the time the judgment was filed. He having already qualified, no process was necessary for that purpose. He is in full possession of the same and entitled to exercise its duties and draw the salary thereto attached from the date of his appointment. The judgment took effect immediately upon being filed, and is not (483) superseded by the subsequent writ of error, regular or irregular.Foster v. Kansas,
Both motions refused.
Writ of Error dismissed.
