Opinion
(June Term, 1877.)
Practice — Title to Public Office — Motion.
Title to a public office cannot be tried by a motion.
APPEAL from an order made at Spring Term, 1877, of GRANVILLE, before Buxton, J.
J. B. Batchelor for plaintiff.
Merrimon, Fuller Ashe, and T. B. Venable for defendant.
The facts appear in the opinion.
Here we have rather a novel proceeding for trying title to an office, which is the only object of the plaintiff's appeal. During a session of the Superior Court the defendant presents his credentials from the board of county commissioners, showing that he has been qualified and inducted into the office of sheriff, so far as said board had authority to do so. The judge, after full consideration, directed the clerk to deliver all his future process and precepts to the defendant. The plaintiff, who had been discharging the duties of said office for some time and still claimed the right to do so, resisted and appealed from said order to this Court. No action has been instituted, no complaint or answer filed, and no trial below, except as above stated.
We have held in Jones v. Comrs. of Granville, ante, 280, that title to an office cannot be tried by an injunction, and we now hold that it cannot be tried by motion. It has been several times declared that the appropriate and precise mode of trying title to an office is by an (283) action in the nature of a quo warrants, Patterson v. Hubbs, 65 N.C. 119, Brown v. Turner, 70 N.C. 93.
PER CURIAM. Appeal dismissed.