Den ex dem. of Walker v. Greenlee, 12 N.C. 367, 1 Dev. 367 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 367, 1 Dev. 367

JUNE TERM, 1828.

Den ex dem. of Arthur Walker & wife v. Fen and Samuel Greenlee.

From Wilkes.

A Judge of the Superior Court h.,s power to continue a cause upon the condition of reading absolutely the deposition of a resident witness ; and a party accepting the terms, cannot on the trial, insist upon the production of the witness.

Ejectment, tried on the last circuit, before his Honor Judge DonNEXX.

At the term before the trial, the Defendant had applied for a continuance, which was granted, upon condition that several depositions then filed in the cause, and among them that of one Ford, should be read absolutely. On the trial, the deposition.of Ford, was offered by the lessor of the Plaintiff, and objected to by the Defendant, upon the ground that the witness being a resident of this State, the Judge who made the order, had no power to impose upon the Defendant the terms <>f permitting it to be read absolutely. The presiding Judge overruled the objection, and a verdict being returned for the lessors ef the Plaintiff, the Defendant appealed.

From this decision, the Defendant appealed to this Court.

Nash, for the Defendant, was stopped by the Court, No Counsel appeared for the petitioner.

Hall, Judge.

In the case of Hawkins v. The County of Randolph, (1 Murph. 118) it was decided that an appeal would not lie to the Superior Court, from an order of the County Court, concerning a public road. By the act of 1813, (Rev. ch. 862) an appeal is given in such cases, but nothing is said either by the Court in the case of Wood v. Hood, or by the Legislature in that act, respecting private ways or cartways ; jurisdiction of which is given to the County Courts, by the act of 1798.

In Wood v. Hood, it was held, that a petition for a cartway so far resembled a petition for a public road, that an appeal would not lie from a decision made on it, before the passage of the act of 1813, and that the act gave an appeal.

I think the act of 1813, does not give an appeal with respect to cartways, &c.~ but is confined altogether to public roads. In the present case, the appeal is proper under the act of 1777, it being á contest between two individuals, and it does not fall within the reasons upon which an appeal was refused, with regard to public roads.

The judgment of the Superior Court, dismissing the appeal, must therefore be reversed, and the cause remanded. .

Per Curiam. — Judgment of the Court below reversed and writ of procedendo awarded.