Nantahala Power & Light Co. v. Whiting Mfg. Co.

• Decision Date: 26 February 1936
• Docket Number: 21.
• Parties: NANTAHALA POWER & LIGHT CO. v. WHITING MFG. CO. et al.
• Court: North Carolina Supreme Court

184 S.E. 48

209 N.C. 560

NANTAHALA POWER & LIGHT CO. v. WHITING MFG. CO. et al.

No. 21.

Supreme Court of North Carolina

February 26, 1936

Appeal from Superior Court, Graham County; Warlick, Judge.

Proceeding by the Nantahala Power & Light Company against the Whiting Manufacturing Company and the Irving Trust Company, trustee. From an adverse judgment, the respondents appeal.

Affirmed.

This was a proceeding instituted by petitioners to condemn certain land of the respondents for hydroelectric development. The clerk of the superior court of Graham county appointed commissioners to view and appraise the value of the described land, and the named commissioners thereafter made their report appraising the value of said land at $165,000. To this report petitioners filed exceptions, and when the matter came on for hearing on said report before the clerk, and before it was heard, petitioners moved to be allowed to take a voluntary nonsuit. The clerk overruled the motion of petitioners for nonsuit, and subsequently on the same day, on motion of respondents, confirmed the report of the commissioners, whereupon the whole matter was appealed to the superior court at term.

From judgment of Warlick, J., reversing the clerk, adjudging that petitioner had right to take a nonsuit, and directing judgment of nonsuit, respondents appealed to this court.

At common law, a voluntary nonsuit was an abandonment of the cause by plaintiff, who allowed judgment for costs to be entered against him by absenting himself or failing to answer when called upon to hear the verdict.

Jones & Ward, of Asheville, and T. M. Jenkins and R. L. Phillips both of Robbinsville, for appellants.

Black & Whitaker, of Bryson City, and J. N. Moody, of Murphy, for appellee.

DEVIN Justice.

The single question presented by this appeal is whether petitioners in a condemnation proceeding, after commissioners have made their appraisal and report, and exceptions are filed, but before confirmation, can submit to a voluntary nonsuit and abandon the proceeding.

In civil actions, the right of the plaintiff to submit to a voluntary nonsuit is unquestioned, where no counterclaim is set up in the answer and no rights have accrued.

At common law, a voluntary nonsuit was an abandonment of the cause by a plaintiff, who allowed judgment for costs to be entered against him by absenting himself or failing to answer when called upon to hear the verdict. 18 C.J. 1146; McKesson v. Mendenhall, 64 N.C. 502. It is a well-settled rule of procedure in this jurisdiction that a nonsuit may be taken at any time before verdict. McIntosh Prac. and Proc., § 628. And this right continues even after the jury has attempted to render a verdict, with some, but not all, of the issues answered, where the verdict is not accepted by the court and the jury is sent back with instructions to respond to the unanswered issues. Southern Cotton Oil Co. v. Shore, 171 N.C. 51, 52 87 S.E. 938; Cahoon v. Brinkley, 168 N.C. 257, 84 S.E. 263.

However a proceeding to condemn land under statutory power is a special proceeding and is so denominated by the statute C.S. § 1715. But C.S. § 752 requires that "except as otherwise provided" special proceedings shall be governed by the same rules laid down for civil actions.

And in C.S. § 1729 we find this language: "In all cases of appraisal under this chapter where the mode or manner of conducting all or any of the proceedings to the appraisal and the proceedings consequent thereon are not expressly provided for by the statute, the courts before whom such proceedings may be pending shall have the power to make all the necessary orders and give the proper directions to carry into effect the object and intent of this chapter, and the practice in such cases shall conform as near as may be to the ordinary practice in such courts."

The statutes regulating the practice and procedure for the condemnation of land make no specific reference to the question whether at any time the petitioner may abandon the proceeding and submit to nonsuit, but they do recognize the fact that the petitioner may elect not to complete the proceeding, and provision is made therefor. The procedure subsequent to the filing of report by the commissioners is set forth in C.S. § 1723. In this last-mentioned section it is provided that the petitioners may not enter into possession of the property sought to be condemned until the amount appraised has been paid in full, and that upon confirmation of appraisers' or commissioners' report and payment of the amount into court the title of the landowner...