Strickland v. Cox

• Decision Date: 09 April 1889
• Citation: 9 S.E. 414,102 N.C. 411
• Parties: STRICKLAND v. COX.
• Court: North Carolina Supreme Court

9 S.E. 414

102 N.C. 411

STRICKLAND v. COX.

Supreme Court of North Carolina

April 9, 1889

Appeal from superior court, Surry county; CLARK, Judge.

This case was submitted upon the following agreed statement: This was a civil action, brought by plaintiff for the possession of the land described in the complaint, returnable to August term, 1887. At the November term, 1887, Judge GILMER granted judgment for plaintiff for possession of the land, to be stricken out if defendant filed a justified bond, in the sum of $200, within 30 days from the adjournment. The defendant failed to file in 30 days the justified bond required in said judgment, but within 30 days, and without notice to plaintiff, did file with the clerk an affidavit that affiant was unable to give the justified bond required, and also unable to make the deposit; and also, at same time defendant's attorney filed with the clerk the certificate required by statute, and, upon producing the affidavit and certificate, the clerk made an order allowing defendant to defend the suit without bond. After the expiration of the 30 days, to-wit, on the 13th February, 1888, the defendant having failed to file the justified bond as required, the clerk issued a writ of possession, and delivered same to the sheriff, and same was duly executed the 16th February, 1888 by M. L. Patterson, a regular deputy-sheriff, by putting defendant out and plaintiff in possession of the said land. That defendant, after due notice to plaintiff, moved his honor, CLARK, J., at the spring term of said court, to set aside said writ of possession, on the ground that the same was illegally issued, and for an order of restitution; that said motion was allowed; and the judge assigned the following grounds: First, that the judgment of Judge GILMER contained a condition, and was therefore void; secondly, that the clerk was legally authorized to make the order he did, allowing defendant to defend the suit without bond, and that the writ of possession, issued after such order, was without legal authority, and therefore void; and rendered judgment setting aside the writ of possession, and ordering a writ of restitution. From this judgment plaintiff appealed.

Alternative or conditional judgments at law are void in civil as well as in criminal cases.

Watson & Buxton and W. F. Carter, for appellant.

R. L Haymore, for appellee.

SHEPHERD J.

We are aware that it has not been unusual to...