State Highway Commission v. Stokes , 3 N.C. App. 541 ( 1969 )

MORRIS, J.

The order determining issues signed by the court contained 28 findings of fact. The findings of fact included a chronological history of the occurrences set out above including the fact that no request for continuance was made by counsel for defendants, that there was no evidence of any physical disability which would prevent counsel’s attendance, nor was any other excuse offered. The court also found that "on September 20, 1949, the defendants Lindsey Stokes and Mary W. Stokes executed a right of way agreement to the North Carolina State Highway Commission (State Highway and Public Works Commission) conveying to it an easement in perpetuity across the entire western margin of their property as shown on the right of way agreement consisting of a width of 152 feet and running from the southern margin of the defendants’ property to the northern margin of the defendants’ property.” The court found as a fact that the area taken is that certain area designated as New Right of Way on the plat filed. On the facts found the court made the following conclusions of law:

“1. That the plaintiff, State Highway Commission, is an agency of the State of North Carolina, with the power of eminent domain and that acting pursuant to the authority granted them by statute, did acquire an interest as set forth above in the defendants’ property and that it was necessary for the plaintiff to appropriate this property for the construction of Project 8.1592502, Rockingham County.

2. That all parties who have or claim an interest in the property rights affected by this appropriation are properly before the Court;

3. That the date of taking is July 29, 1966; that this matter was properly calendared for trial by the Rockingham County Bar Association; that the access on the service road across the entire western margin of defendants’ property which leads to the primary or main travelled lanes of U. S. Highway #29 a distance of 350 to 400 feet from the southern margin of defendants’ property is reasonable access and the defendants are not entitled to compensation for any control of access to the main travelled lanes of U. S. Highway #29 in front of their property; that the right of way agreement dated September 20, 1949, introduced into evidence as plaintiff’s Exhibit No. 3 is a valid conveyance of the property described in the plat herein-above referred to, consisting of 1.96 acres and designed (sic) as old right of way on said plat.

4. That there is no evidence to sustain the allegations of fraud alleged in the Answer of the defendant and the cause of action alleged therein is hereby dismissed.

5. That the only issue remaining to be decided is ‘What sum, if any, are the defendants entitled to recover of the plaintiff, State Highway Commission, for the appropriation of a portion of their property for highway purposes?’ ”

Defendants did not except to any finding of fact or conclusion of law, but excepted to the entry of the order. They assign as error the court’s resetting the case “for hearing to determine the issues under General Statutes 136-108, with less than 10 days’ notice” and further contend the court was without “jurisdiction to determine the issue of fraud in this case without trial by jury.”

Counsel for appellants candidly concede that they are unable to present any authority with respect to their contention that they are entitled to have a jury trial on the issue of fraud, but they earnestly contend that had they appeared for trial, they would have waived this right.

G.S. 136-108 provides: “After the filing of the plat, the judge, upon motion and ten (10) days’ notice by either the Highway Commission or the owner, shall, either in or out of term, hear and determine any and all issues raised by the pleadings other than the issue of damages, including, but not limited to, if controverted, questions of necessary and proper parties, title to the land, interest taken, and area taken.”

Appellants contend that this statute requires notice of ten days before the court can hear the matter to determine issues and that because this notice was not given, the court was without jurisdiction to hear the matter. This contention is without merit. This case had been pending in the court for several months, had been calendared for trial, and appellants had received notice of its having been calendared for trial and had caused to be issued subpoena duces tecum for the production of documents at the trial. They did not appear for the call of the calendar nor in response to the request of the court that they appear to discuss the calendar. This was a regular session of court. The Supreme Court and this Court have said repeatedly that parties are fixed with notice of all motions or orders made during the session of court in causes pending therein, and the statutory provisions for notice of motions are not applicable in such instances. Harris v. Board of Education, 217 N.C. 281, 7 S.E. 2d 538 (and cases cited therein); Angle v. Black, 1 N.C. App. 36, 159 S.E. 2d 254.

The record before us clearly reveals that the trial court gave counsel for appellants every opportunity to be present to discuss the calendar; and when they did not appear for that purpose, the court, on its own motion, reset the case for trial on Monday, 29 July 1968. The calendar is under the control of the court, and the court has the right, not only to determine whether it is necessary to make a calendar, but to make such orders as are necessary for the dispatch of business as to the disposition of causes placed on the calendar and not reached on the day for which they are set. Rule 22, Rules of Practice in the Superior Courts of North Carolina, Yol. 4A, N.C. General Statutes, App. I. In resetting the case for trial the court certainly did not exceed its authority, and it appears abundantly clear from the record that the court was acting in consideration of appellants’ counsel.

When counsel for appellant failed to appear on 29 July 1968, at the second call of the case, the right to.a jury trial was waived. G.S. 1-184. Appellants could have appeared, requested a jury trial, and protected by exception any rights they deemed denied. They chose not to appear and we think they have waived any right to jury trial they might have had.

Under our view of the case, the question of whether G.S. 136-108 deprives appellants of a jury trial on the issue of fraud is not reached, and we, therefore, do not discuss it.

The only issue remaining for determination is the issue of damages as set out in the trial court’s fifth conclusion of law.

In the proceedings and order of the trial court we find

No error.

Campbell and BrocK, JJ., concur.