Lambe v. Love
| Decision Date | 08 November 1891 |
| Court | North Carolina Supreme Court |
| Parties | Lambe et al. v. Love |
Establishment of Highway — Appeal fhom Order of Commissioners—Time of Taking.
1. An appeal from an order of the county commissioners establishing a public road, and directing a jury to be summoned to lay it out and assess damages, may be taken as well after the confirmation of the report of the jury as before.
2. An appeal will not lie to the supreme court from a decision of the superior court refusing to dismiss, during the trial, an appeal from an order of the county commissioners opening a public road; but the appellant, in such a case, should have assigned error in the record to be considered on appeal from the final judgment.
Appeal from superior court, Chatham county; James D. McIveh, Judge.
This was a petition to have a public road and ferry established. The prayer of the petitioner was allowed. The jury laid out the road, assessed damages, and made their report to the county commissioners, who confirmed the same. Thereupon the respondent appealed to the superior court. In the latter court, the appellants (petitioners) moved to dismiss the appeal, "upon the ground that the defendant (respondent) should have appealed from the order of the commissioners establishing the public road, fixing the termini, and directing the sheriff to summon a jury of freeholders to lay off said road, and that the defendant could not appeal from the order confirming the report of the jurors. " The court denied the motion, and the petitioners, having excepted, appealed to this court. Affirmed.
John Manning and J. S. Manning, for appellants.
T. B. Womack, for appellee.
Merrimon, C. J., (after stating the facts as above.) It may be that the respondent was satisfied with the order of the county commissioners directing the laying out of the public road, and he did not desire to appeal from such order; but he may have been dissatisfied, for good cause, with the action of the jury in some material respect, and that of the county commissioners in confirming their report. The jury may not have been a lawful one. They may have proceeded improperly in the execution of the order, or in assessing damages, to the prejudice of the respondent. If so, and their report was improperly confirmed, he had the right to appeal, and it was the duty of the superior court to hear and determine the matter according to law. What we have said is in no sense in conflict with what is said and decided in McDowell...
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Williams v. Bailey
... ... 278, 12 S.E. 134; Plemmons v ... Improvement Co., 108 N.C. 614, 13 S.E. 188; Guilford ... v. Georgia, 109 N.C. 310, 13 S.E. 861; Lambe v ... Love, 109 N.C. 305, 13 S.E. 773; Sheldon v ... Kivett, 110 N.C. 408, 14 S.E. 970; Cameron v ... Bennett, 110 N.C. 277, 14 S.E. 779; ... ...
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Walls v. Strickland
...1080, and many other cases. We have held that an appeal lay from the county commissioners. Young v. Rollins, 90 N.C. 131; Lambe v. Love, 109 N.C. 305, 13 S.E. 773. And that where an act gives no appeal, the court will grant a writ to bring up the case as on appeal. Hillsboro v. Smith, 110 N......
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Keaton Et Al.,v,. Godfrey.
...in a proceeding to lay off a road. When taken, it carries the whole proceeding to the superior court for trial de novo. Lambe v. Love et al., 109 N. C. 305, 13 S. E. 773. The proper time to appeal is when the commissioners have confirmed the report of the jurors who laid off the road and as......
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