Jones v. City of Asheville

• Decision Date: 07 May 1895
• Citation: 21 S.E. 691,116 N.C. 817
• Parties: JONES v. CITY OF ASHEVILLE. Appeal of CAMPBELL.
• Court: North Carolina Supreme Court

21 S.E. 691

116 N.C. 817

JONES v. CITY OF ASHEVILLE. Appeal of CAMPBELL.

Supreme Court of North Carolina

May 7, 1895

Appeal from superior court, Buncombe county; Armfield, Judge.

Action by Laura E. Jones against the city of Asheville to recover damages for land taken under the right of eminent domain. J M. Campbell, upon application, was made a party defendant. From a judgment entered in compliance with an agreement between plaintiff and defendant city, defendant Campbell appeals. Reversed.

The refusal of the court to allow a reversioner, on his application, to be made a party defendant in a suit brought by the holder of the life estate against a city for damage to the land caused by the widening of a street, was error though such reversioner had refused to join in the suit at request of the plaintiff.

C. M Stedman, for appellant.

W. W Jones, F. A. Sondley, and J. H. Merrimon, for appellee.

FURCHES J.

The plaintiff and J. M. Campbell are the owners of a house and lot in the city of Asheville, the plaintiff owning a life estate therein, and Campbell owning the remainder in fee simple. In 1892 the defendant city, acting in accordance with the provisions of its charter and in the exercise of its right of eminent domain, for the purpose of widening the streets of the city of Asheville, took and appropriated a part of the lot above mentioned, belonging to the plaintiff and the said J. M. Campbell. Some time after the appropriation of the property above mentioned, the damage to said lot was assessed in the name of the plaintiff, reported to the commissioners as the law provided, and by them ratified and affirmed. This report assessed the damage at $875, but before it was paid Campbell put in a claim for his part, as he alleged, of the $875, and forbade the defendant city paying it to the plaintiff; and under this condition of things the city refused to pay, and the plaintiff brought this action; and at December term, 1892, the plaintiff filed her complaint, and some time in March, 1893, the defendant filed an answer, in which it set up the fact that Campbell was the owner of the reversion, and Mrs. Jones the owner of the life estate, in said lot, and asked that Campbell be made a party defendant, and the matter adjusted. But it does not appear that any steps were taken to make Campbell a party, until August term, 1893, when he appeared in court by his attorneys, and asked to be made a party defendant, and that he be allowed to file an answer, and set up his claim to a part of the $875. Before this the plaintiff, Jones, and the defendant city had agreed upon a judgment, but the same had not been signed and filed. The court refused the motion of Campbell to be allowed to make himself a party defendant and to file his answer, and Campbell appealed.

It appears in the facts found by the court that the plaintiff had requested Campbell, before she commenced her action, to join her in trying to get pay for their property; and he declined to do so, saying that his interest in the property did not commence until after her life estate ended, and he would have nothing to do with it till then. And it seems that the court below thought this was not very nice treatment,...