Puette v. Mull

• Decision Date: 15 May 1918
• Docket Number: 517.
• Citation: 95 S.E. 881,175 N.C. 535
• Parties: PUETTE v. MULL ET AL.
• Court: North Carolina Supreme Court

95 S.E. 881

175 N.C. 535

PUETTE v. MULL ET AL.

No. 517.

Supreme Court of North Carolina

May 15, 1918

Appeal from Superior Court, Transylvania County; Carter, Judge.

Action by S. M. Puette against W. P. and A. L. Mull, wherein defendants moved to enjoin the enforcement of a writ of possession. From a judgment setting aside the writ and granting defendants leave to file a bond and answer plaintiff appeals. Affirmed.

In action to recover possession of land, where judge during term entered order allowing defendants ten days to file answer and defense bond, and, in default, plaintiff to have judgment final, to which was attached form of judgment which was formally entered by the clerk after adjournment for term such judgment was a nullity.

D. L English, of Brevard, for appellant.

BROWN J.

This action was brought to recover possession of a tract of land. The summons was duly served and returned at July term, 1917 at which time the complaint was filed duly verified. The plaintiff did not move for judgment at the return term, and the cause was continued until the following term, November, 1917. At that time the plaintiff moved the court for judgment by default final for failure of the defendant to file answer or defense bond. At that term Ferguson, Judge, entered the following order:

"It is ordered by the court that the defendants be and they are hereby allowed ten days from this date to file answer and justified defense bond, and in default the plaintiff is allowed judgment final by default, and the judgment hereto attached shall be and constitute such judgment by default final."

This order is dated December 7, 1917, and attached to it is a judgment in the ordinary form by default final for failure to file an answer or defense bond, whereby the plaintiff is adjudged to be the owner of the land described in the complaint, and directing the issuing of a writ of possession. No answer or defense bond having been filed within the ten days from the adjournment of the court, this judgment was duly docketed by the clerk on December 24, 1917. After that on motion of the plaintiff, a writ of possession was issued. The cause came on to be heard before Carter, Judge, upon a motion to enjoin the execution of the writ, and to set the same aside. Upon the hearing he adjudged that the writ of possession was improvidently issued; that no judgment had been duly entered, and docketed during the regular term of the...