48 S.E. 804 | N.C. | 1904
This was a proceeding to alter a public road over the land of the defendant, brought before the Board of Commissioners of Union County and heard in July, 1904, on or prior to the 8th day of that month. The defendant, through his counsel, entered a special appearance and moved to dismiss the proceeding upon the following grounds: 1. For that the petition does not state over whose land the proposed road would run. 2. For that it does not appear that the persons over whose land the proposed road would run have been duly notified. 3. For that it appears that the persons over whose land the proposed road runs have not been notified. 4. For that it does not state that the proposed road is a public necessity.
The board overruled the motion and proceeded to hear and determine the case upon the evidence. They decided (406) that the alteration of the road was a public necessity and granted the prayer of the petition. The defendant excepted and appealed under section 2039 of The Code. He gave due notice of his appeal and on July 8 filed a bond to secure the costs of the appeal as required by the board, and asked that proper transcript of the proceedings be sent to the Superior Court. He took no further action in the matter, and it does not appear that he either paid or tendered payment of the costs of the transcript. The next term of the Superior Court after the appeal was taken commenced on 1 August, 1904, and was for the trial of criminal cases only (Laws 1901, chap. 28, sec. 1, p. 169), *296 although the second section of that act (p. 175) provides as follows: "Civil process shall be returned to, and pleadings filed at, all the courts herein designated as exclusively criminal; motions in civil actions may be heard upon due notice at such criminal terms; and trials in civil actions, which do not require a jury, may be heard at such criminal terms by consent." The next term of the Court was held on 22 August. It is provided by the act just mentioned that "the first week (of that term) shall be for the trial of criminal cases and the second week for the trial of civil cases alone."
The week for the trial of civil cases commenced then on 29 August. On 31 August the plaintiffs caused the papers to be filed and the case to be docketed in the Superior Court, and moved to dismiss the appeal, the defendant having taken no action before the board or in the Superior Court by motion for a recordari or for a rule on the board to send up the case. The Judge allowed the motion of the plaintiffs and dismissed the appeal. Defendant excepted and appealed.
It is stated in the record, as a fact found by the Judge, that the defendant, after the appeal was dismissed, moved to dismiss the case for the reasons set out in his motion to the same effect before the board. This motion was denied and defendant excepted. It is stated in the case on appeal prepared by counsel that this motion to dismiss the case was made before the appeal was dismissed, but in this conflict the finding of the Judge and the record must control. The motion certainly came too late, even if it should have been granted had it been made earlier. Davenport v.Grissom,
We are of the opinion that the appeal should have been docketed at the term of the Court which commenced on the first Monday of August (1 August), although it was for the trial of criminal cases alone. The provisions of section 2, chap. 28, Laws 1901, are very broad and comprehensive, and are certainly sufficient in their scope to include a case of this kind. By section 2 civil process may be returned to, and pleadings filed at, that term; motions may be heard upon notice and trials had in all civil actions which do not require a jury. See also, section 7. It seems from these provisions of the law that it was intended that all papers in civil cases, required to be returned to the next term of the Superior Court, should be so returned without regard to whether it is a civil or criminal term, and *297
that such proceedings may be had in any civil case as do not require the intervention of a jury. This being so, we cannot see why the appeal in this case was not required to be sent up to the first term of the Court, although it was a criminal term, as the motion of the defendant, upon his special appearance, to dismiss, could have been heard at said term, and if the Court had decided either for or against the defendant and this Court had approved the judgment, provided the case had been brought here by a further appeal, it would have finally (408) determined the action. Besides, the appellee has the right to have the case there, if the appellant intends to prosecute his appeal, so that he may make such motions as may be necessary to protect his rights and to speed the trial of the cause, and this seems to be the true intent of section 2 of the act. So that the case comes not only within the spirit but also within the letter of the act. But this Court, upon a full consideration of this statute, has decided that the appeal must be taken and he return made to the next term, whether criminal or civil, under the provisions of section 2. Johnson v.Andrews,
Laws 1899, chap. 443, provide that in appeals from justices' courts, if the appellant fails to docket his appeal in time the appellee may docket the case and upon motion have the judgment of the justice affirmed and recover the costs of the appeal. *299
The judgment affirming is in substance equivalent to a judgment dismissing the action. The latter is given when no appeal has been docketed, as in this case, and the former when the appeal has been docketed and the record sent up, but no case on appeal has been filed. It certainly was not intended that the Court should look into the record for the purpose of passing upon the merits of the exceptions in the lower Court, for this would be to give the appellant, who has been in fault, the full benefit of his appeal, and the act would be self destructive. Davenport v. Grissom,supra. In construing a statute we must ascertain the intention, for when a case is brought clearly within the intention of the law it is within the law itself. People v. Lacombe,
No error.
Cited: Love v. Love,