Opinion
June Term, 1870.
A suit to recover the possession of land is a civil action, and no a special proceeding; therefore, the summons (by the act of 1868-'69 c. 76.) is returnable to term time, and not before the Clerk.
CIVIL action to recover possession of land, tried before Jones, J., at Spring Term 1870, of WASHINGTON Court.
Smith for the appellant.
Collins Armistead contra.
The summons was returned before the Clerk, and the defendant having demurred to the complaint for want of jurisdiction, the action was dismissed; upon an appeal to the Judge, this ruling was reversed; and the defendant appealed to this Court.
The question whether an action to recover the possession of land, is a civil action, within the meaning of the Code of Civil Procedure, and the act of 1868-'69 ch. 76, p. 189, so as to require the summons to be returned in term time, — or, is a special proceeding, as distinguished from what is termed in the Code a civil action, so that the summons may be returnable before the Clerk at any time, is decided in Tate v. Powe, ante 644. Personally, I do not quite approve of the manner in which the line of distinction is drawn in that case. I think those actions are special proceedings, in which existing statutes direct a procedure different from the ordinary. In practice, the two lines will almost always coincide, but this seems to me the most convenient.
On any principle of distinction such an action as this must be deemed a civil action. The mention by the Code Commissioners, (650) in their Report, of the action of ejectment as one of those in which some legislative provision of special proceeding would probably be found necessary, no doubt indicated the opinion of the Commissioners, and their intention to present some such provision to the General Assembly for its consideration. It may be that for the same reason which caused the introduction of the modern action of ejectment in lieu of the old action of ejectione firmae, the Legislature may yet find it expedient to provide some special proceeding for such a case. But hitherto they have not done so. There was error in the opinion of the Judge: the demurrer must be overruled. The defendant will recover costs in this Court. Let this opinion be certified.
Per curiam.
Reversed. Cited: Holmes v. Marshall, 72 N.C. 40; Hallyburton v. Greenlee, 72 N.C. 319; Sharpe v. Williams, 76 N.C. 90