Shoffner v. . Fogleman , 44 N.C. 280 ( 1853 )

And the case being before Caldwell, J., at Spring Term, 1852, upon a motion to confirm the report of the jury, and testimony being heard on both sides, several objections arising out of the record were taken by the defendants; among others, that it was not competent for the Superior Court to order a jury upon the appeal from the county court, and that aprocedendo ought to have issued. But his Honor overruled the objections, and from his judgment confirming the report of the jury the defendants appealed to the Supreme Court. The defendants' counsel objects to the judgment of the Superior Court upon two grounds: First, because that court issued an order to the sheriff of the county, commanding him to summon a jury to lay off the road in question, instead of directing, by (282) a writ of procedendo, the county court to issue such order; secondly, because the report of the jury showed that the road had not been laid out according to the provisions of the Revised Statutes, chapter 104, section 4. Neither of these objections is well founded. In the third section of the act above referred to, which gives the right of appeal to any person who may be dissatisfied with the judgment, sentence or decree which the county court may make upon a petition to layout a public road, it is declared "that the appeal so granted shall be subject to the same rules and regulations as in other cases from the county courts to the Superior Courts; and the said Superior Courts shall proceed to hear and determine the said petition, as shall appear right and expedient." These words are clearly sufficient to give the Superior Courts jurisdiction to hear and determine all questions which may arise in the course of the proceedings on the petition, until the final judgment or decree confirming the report of the jury. If this were not so, two or more appeals from the county to the Superior Court might be necessary before the matter could be finally settled. But if the language of the act above quoted admitted of any doubt, it is completely removed by the proviso which immediately follows: "Provided, nevertheless, that nothing in this act contained shall authorize the Superior Court to interfere in fixing or regulating the rates of ferriage, tolls of bridges, or the distribution of allotments of hands to work under the overseers of the public roads." This exception shows the full power of the Superior Court in all other respects. An order similar to the one here complained of was made by the Superior Court in Davis v. Hill,33 N.C. 9, without objection, though an appeal was taken to this Court from the judgment for costs.

For the second objection, the cases of Leath v. Summers, 25 N.C. 108, and Welch v. Piercy, 29 N.C. 365, were cited. The first of these cases decides only, that in a petition to turn or change a public road, it must be alleged that the new road is necessary or would be useful to the public. Such an allegation is expressly made in the petition now before us. In Welch v. Piercy, it was held that the county court had power to order a jury to lay out a public road, but could not itself lay it out; further, that it has no power, except as to the termini, to direct the jury how the road shall run — that being the exclusive province of the (283) jury. The order in our case directs the jury to lay out the road along the very route mentioned in the petition, and the report of the jury, though more particular in describing the line of the road which they had laid out, shows that they commenced and terminated at the places designated as its termini, and that in all other respects they obeyed the injunctions of the order. What were the terms of the compromise made by the plaintiff and defendant, does not appear on the record. Whatever they may have been, it is not shown that they induced the jury to deviate from the general route of the road which they were commanded to lay out.

There being no error in the judgment of the Superior Court, it must be affirmed, which will be certified according to law.

PER CURIAM. Judgment affirmed.

Cited: Russell v. Saunders, 48 N.C. 433; Purvis v. Robinson, 49 N.C. 98;Evans v. Mining Co., 50 N.C. 334; Morehead v. R. R., 52 N.C. 501;Caldwell v. Parks, 61 N.C. 55; Warlick v. Lowman, 104 N.C. 407.

Distinguished: Millsaps v. McLean, 60 N.C. 80.