Anders v. Anders, 49 N.C. 243, 4 Jones 243 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 243, 4 Jones 243

SAMUEL ANDERS et al. vs. ELIZABETH ANDERS et al.

It is not regular upon the hearing of exceptions to the report of a jury, ordered to lay off a public road, for the Court to consider of the propriety of such order.

An .appeal from the judgment of a County Court upon exceptions to the report of a jury, ordered to lay off a road between certain iermmi, only embraces such exceptions, and does not take up the merits of the petition.

This was a petition to lay out and establish a public road, tried before PeesoN, Judge, at a Special Term, January, 1856, of Bladen Superior Court.

The petitioners filed their petition, ex parte, in the Court of Pleas and Quarter Sessions for Bladen county, having previously given twenty days’ notice of their intention to do so, to all persons over whose land the road was to pass. Notice of the filing thereof being posted at the court-house door, according to law, until the next Court, it was then ordered that the road should be laid out, &c. A .jury was accordingly summoned, who laid out the road and made their report to the next Court, when the defendants came in, and, by leave of the Court, made themselves parties. The report of the jury was confirmed, and from that judgment the defendants prayed an appeal, which was allowed. In the Superior Court, the petitioners moved to dismiss the appeal, because the defendants had no right to appeal from the judgment of the County Court at that time, but should have made themselves parties, and appealed when the laying out of the road was ordered. The Court being of a different opinion, the case was heard upon its merits de novo, and judgment was given, upon consideration of the whole matter, that the petition be dismissed with costs. Prom which judgment the petitioners appealed.

JS. G. Haywood, for plaintiffs.

No counsel appeared for the defendants in this Court.

Battle, J.

The principle established in the cases to which we are referred by the counsel for the plaintiffs, is just and proper, and by it we must be governed in the decision of the present. That principle is, that when, upon a petition to the County Court that a certain thing be done, which it is competent for that Court to order, the Court makes the order that it shall be done, a party dissatisfied may appeal from it; but if he neglect to do so, and afterwards object to the regularity or sufficiency of the proceedings under it, and they are confirmed, his appeal then, will carry up the question upon the proceedings only, and not ilio original order. This was clearly stated by the Court, as the general rule, in Harvey v. Smith, 1 Dev. and Bat. Rep. 186, though for reasons peculiar to that case, which was a petition for the re-probate of the testament of a married woman, it was decided to be an exception. The principle was again recognised in the State to the use of Dula v. Laws, 7 Ire. Rep. 375, having been previously applied to the ease of a petition for dower, in Stiner v. Cawthorne, 4 Dev. and Bat. Rep. 501.

No decision has, as yet, been made upon the point in the ease of a petition to the County Court for laying off a public road; but the reasons, upon which the rule is founded, apply with as much force to such a case as to any other. When the County Court makes the order that a road shall be laid out between the termini therein mentioned, according to the prayer of the petition, it is a “judgment, sentence, or decree of the Court,” from which any person dissatisfied, may pray an appeal to the Superior Court: 1 Rev. Stat, ch. 4, sec. 2, clause 5 ; Rev. Code, ch. 4, sec. 2. “ It is (say the Court in Harvey v. Smith) a sentence, materially affecting the subject-matter in contestation; inform, final on the point decided ; and which the dissatisfied party ought to have an opportunity of reviewing in the appellate tribunal, before it may lead to further mischief. Where the dissatisfied party neglects to appeal from such a sentence, it is not regularly re-examinable in the superior tribunal. All objections thereto which may be waived by not being brought forward in apt time, are waived, and the cause proceeds in the appellate Court, as it ought to have proceeded in the Court below, subsequently to that sentence.”

In the present case, the order passed without objection; but after all the trouble and expénse attendant upon the summoning of a jury and having the 'load laid out, the defendants came forward, had themselves made parties defendant to the cause, and then, for the first time, objected to the order, and moved to have it set aside. We hold that they were then too late for any objection, except one to the report of the jury, and that their appeal to the Superior Court did not disturb the order for laying out tbe road, but only took up tbeir exceptions to suck report. See Stiner v. Cawthorne, 4 Dev. and Bat. Rep. at p. 505.

The judgment of the Superior Court dismissing the petition was therefore erroneous, and must be reversed; and this will be certified to the said Superior Court, to the end, if there is no sufficient exception to the report of the jury, it may be confirmed; and if it be set aside as erroneous or insufficient, a ¡procedendo may issue to the County Court, in order that another jury may be summoned to lay out the road according to law.

Pee Cueiam. Judgment reversed.