Upon application of the defendants, alleging error in the opinion rendered in this proceeding and the judgment of the court, in which the defendant asks this Court to issue what the defendants call a writ of restitution; and upon application of plaintiff, alleging error in said opinion and judgment of the court, and asking the court not to pass upon the defendants' application and motion until he can prepare and file a petition to rehear, and the opinion of the court complained of not having been certified to the Superior Court of Bladen County, we have taken the whole matter under advisement, and have reviewed the opinion and judgment heretofore delivered and rendered.
Treating the motion and application of each party in the nature of and application to rehear, and upon a reexamination of the case, we are unable to see the errors complained of by either party, except as to the matter of costs, which we think the clerk (probably by inadvertence) has taxed against the defendant, when they should have been taxed against the plaintiff.
The plaintiff seems to have misconceived the grounds upon which his motion was dismissed — that of a want of jurisdiction. If the court was correct in this, we can not see how anything could be judicially found and determined; and we see no reason, after reviewing the opinion, to change our opinion as to the matter of jurisdiction.
As we thought, the facts presented by plaintiff, if true, ought to entitle him to relief, if properly presented in a proper forum having jurisdiction to try and determine them. And we are still of that opinion. In such a case, it may be easy for the plaintiff to establish some of the queries we propounded; and if so, it will only be the better for him. *Page 241
We do not think we can grant the defendant's motion. The defendant asks for what he calls a writ of restitution — to compel the plaintiff to pay over the money in his hands to A. E. McDowell (344) — when the defendant John McDowell alleges that the judgment upon which the execution issued belongs to him. But it seems to us that the defendant is asking to be restored to the possession of property of which he has never been in possession; that neither the defendant John, nor his wife, A. E. McDowell, has ever been in possession of either the personal estate or the land of the deceased, John A. McDowell. So we are asked torestore them to something they have never had. This we must decline to do.
The case of Perry v. Tupper, 70 N.C. 536, and same case, 71 N.C. 387, and other cases cited as authority for restitution, do not apply. They were actions for land or property of which the defendant was in possession and had been turned out of possession by the process of the court. At most, the owner of the judgment, whoever it may turn out to be, only had a lien upon this property. This we think the law will preserve until the matter is determined. And the plaintiff will pay out this money at his risk, if he does so before the matter is determined. We can not in advance, when there is no case before us giving us jurisdiction of the matter — upon the affidavits of the parties — undertake to determine and settle these important questions.
We find no error, and leave the matter where it was left by the opinion. But the costs will be taxed against D. G. Robinson.
Both motions are refused.
Cited: S. c., 130 N.C. 250.
(345)