49 N.C. 243 | N.C. | 1856
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 the original order. This was *245 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 Stateto the use of Dula v. Laws, 7 Ire. Rep. 375, having been previously applied to the case 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 case 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; in form, 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 expense attendant upon the summoning of a jury and having the road 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 *246 disturb the order for laying out the road, but only took up their exceptions to such 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.
PER CURIAM. Judgment reversed.
MEMORANDUM.
WILLIAM A. JENKINS, Esquire, of Warrenton, was elected Attorney General, from and after the end of the session of the last Legislature.
MR. BATCHELOR, who had been appointed by the Executive, to the office of Attorney General, until the end of the Legislature, resigned the same at an early day of the session; whereupon, WILLIAM H. BAILEY, Esq., of Hillsborough, was elected ad interim, and attended to the State causes during this term. *249
