Ramsey v. Southern Railway Co., 253 N.C. 230 (1960)

Oct. 19, 1960 · Supreme Court of North Carolina

253 N.C. 230

JETER RAMSEY, Petitioner v. SOUTHERN RAILWAY COMPANY, Respondent.

(Filed 19 October, 1960.)

Courts § 6: Eminent Domain § 9—

Where order confirming the award of appraisers is entered by the clerk on petitioner’s motion and only the respondent appeals, the court in its discretion may permit the respondent to withdraw the appeal, and petitioner may not thereafter contend that respondent’s appeal entitled both parties to a trial de novo before a jury in the Superior Court.

Appeal from Pless, J., August 1960 Regular Civil Term, Madison Superior Court.

This special proceeding was instituted before the clerk superior court by the petitioner to recover compensation for the taking of an’ easement for railway purposes over petitioner’s land. The respondent had the cause removed to the United States District Court. By consent it was remanded to the superior court. Appraisers were appointed, viewed the premises, and awarded the petitioner $3,000 as compensation.

The respondent filed exceptions to the award. The clerk overruled the exceptions and on September 30, 1958, rendered judgment affirming the award. The respondent excepted to the judgment and appealed to the superior court in term. On respondent’s application the cause was again removed to the Federal court and on petitioner’s motion again remanded to the Superior Court of Madison County. Oh August 12, 1960, the petitioner filed a demand for a jury trial.

In term, the respondent moved for permission to withdraw its appeal. The court, in its discretion, entered an order permitting the withdrawal, and ordered that the award “stand as entered.” The petitioner excepted and appealed.

Elmore & Martin, By: Harry C. Martin, Don C. Young, for petitioner, appellant.

W. T. Joyner, Jr., Ward & Bennett, for respondent, appellee.

PER Cueiam.

The petitioner now contends that the respondent’s appeal from the clerk’s order confirming the award entitled both parties to a trial de novo in the superior court, and that his demand for a jury trial entitles him to have the jury pass on the issues of compensation. The answer is, the clerk, on petitioner’s motion, entered judgment confirming the award. Only the respondent appealed. When the court, in its discretion, permitted the appeal to be withdrawn, the clerk’s judgment became the final adjudication.

Affirmed.