Carolina Power & Light Co. v. Briggs

150 S.E.2d 16 (1966) 268 N.C. 158

CAROLINA POWER AND LIGHT COMPANY
v.
Cecil C. BRIGGS and wife, Frances C. Briggs.

No. 128.

Supreme Court of North Carolina.

September 21, 1966.

Van Winkle, Walton, Buck & Wall and Herbert L. Hyde, Asheville, for petitioner.

Williams, Williams & Morris, Asheville, for respondents.

PER CURIAM.

RESPONDENTS' APPEAL

Each of respondents' assignments of error has received careful consideration. Conceding there may be technical error in certain of the court's rulings with reference to the admissibility of evidence, a careful reading of the evidence fails to show respondents were prejudiced thereby. Upon the entire record, we find no error of such nature as to justify a new trial.

PETITIONER'S APPEAL

On June 8, 1962, petitioner paid into the office of the clerk of the superior court the sum of $6,975.00, the amount of damages assessed by the commissioners. Thereby petitioner acquired the right to "enter, take possession of, and hold said lands, notwithstanding the pendency of the appeal, and until the final judgment rendered on said appeal." G.S. § 40-19; Topping v. North Carolina State Board of Education, 249 N.C. 291, 106 S.E.2d 502. In accordance with petitioner's said statutory right, the clerk entered an order "that the petitioner be and it is hereby placed and put into possession of the lands and premises described in the petition." For procedure in condemnation proceedings instituted by the State Highway Commission, see G.S. § 136-103 et seq., and North Carolina State Highway Commission v. York Industrial Center, 263 N.C. 230, 139 S.E.2d 253.

Applying the rule established in City of Winston-Salem v. Wells, 249 N.C. 148, 105 S.E.2d 435, respondents were entitled to judgment for $3,500.00 and interest thereon from June 8, 1962, the date petitioner acquired the right to possession. The court was in error in allowing interest from April 2, 1962, the date petitioner instituted this proceeding. Hence, there should be subtracted from the principal of the judgment an amount equal to the interest on $3,500.00 from April 2, 1962, to June 8, 1962. It is ordered that the judgment be and is so modified; and, as so modified, the judgment is affirmed.

On respondents' appeal: no error.

On petitioner's appeal: Modified and affirmed.