Piercy v. Morris, 24 N.C. 168, 2 Ired. 168 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 168, 2 Ired. 168

WILLIAM W. PIERCY vs. GIDEON F. MORRIS.

When a road has been laid off by order of a County Court upon the re* port of a Jury, confirmed by the Court, and an appeal is taken to the Superior Court, it is too late to take exceptions to the Jury. ‘ The objection should have been made in the Court below, upon the return of the Jury, by a motion to quash the proceedings of the Jury.

Upon an appeal from the final judgment of the County Court on the merits of the case, the Superior Court can only determine on the merits.

This is an appeal from the judgment of the' Superior Court of Cherokee County, his Honor Judge MANLY presiding. The plaintiff and others had petitioned the County Court of Cherokee to have a public road laid out. Notice was given as required by the Act of Assembly. The defendant and others appeared and opposed the prayer of the petition. The Court ordered a Jury, who made a report which was confirmed by the Court and the road directed to be laid off. The defendant appealed to the Superior Court, and there objected to the legality of the proceedings, and contended that they were void, because, 1st, Two of the Jury were not freehoid-ers, (and in support of this exception proof was made); and 2dly, Because one of the petitioners was on the Jury, which surveyed and laid off the road. These, objections were o.verruled. The defendant’s counsel then offered to prove by one of the Jury that he himself did not assent to the report, but this was also not allowed. The Court then heard the case on its merits upon oral testimony and gave judgment for the petitioners, and ordered their judgment to be certified to the County Court. From this judgment the defendant appealed.

Boy den for the plaintiff.

Francis for the defendant.

Gaston, J.

The same points have been made before us as were raised in the Superior Court. In our opinion the exceptions urged against the regularity of the proceedings before the Jury and of the Jury,-ought to have been taken in the County Court, when the report was returned, by a motion to quash the proceedings. This does not appear to have been done, and after an appeal from the final judgment of that Court upon the merits of the dispute, the cause was to be heard and determined in the Superior Court upon the merits. This was done there, and we are bound to presume was rightfully done.

We see no sufficient cause to reverse the judgment of the Superior Court, and the appellant must payjthe costs of this appeal.

Per Curiam, Judgment accordingly.