State v. Davis
Decision Date | 15 May 1912 |
Citation | 74 S.E. 916,159 N.C. 455 |
Parties | STATE v. DAVIS et al. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Henderson County; Long, Judge.
William Davis and another were, in a Justice Court, convicted of a failure to work a road, after notice, and on appeal to the Superior Court were again convicted, and they appeal. Reversed.
Indictment for failure to work road after notice heard on appeal from a justice of the peace and determined as on special verdict before his honor, H. A. Foushee, judge, at March term, 1912 of the superior court of Henderson county. The facts presented in form as a special verdict and agreed upon by solicitor and counsel for defendant are as follows Upon these facts, the court being of opinion that defendants were guilty, it was so adjudged, and defendants excepted and appealed.
McD. Ray and H. G. Ewart, for appellants.
The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.
The first order for the laying out of the road was not pursued and the second application was recognized and dealt with as an original petition both by the parties and the board of commissioners, and, considering the proceedings in that aspect, the case as correctly stated by the Attorney General presents the single question whether defendants can be convicted of the offense of failing to work a public road after being duly notified, while an appeal was pending in the superior court to review the action of the county commissioners establishing the road. The statute applicable to appeals and the effect of them in cases of this kind (Revisal, § 2690) is as follows: "Any person may appeal to the superior court at term time from the determination of the board of county commissioners, and if any person shall appeal from the board on a petition, he shall give bond to the opposing party as provided in other cases of appeal, and the superior court at term shall hear the whole matter anew and where any proceeding is instituted to lay out, establish alter or discontinue public roads or to appoint and settle ferries, and the said proceeding is carried to the superior court in term time by appeal or otherwise, the parties to said proceeding shall be entitled to have every issue of fact joined in said proceeding tried in the superior court in term time by jury, and from the judgment of the superior court either party may appeal to the supreme court as is provided by law for other appeals." From the broad import of the language and authoritative interpretations of this and similar statutes, as well as from the "reason of the thing," we conclude that an appeal properly taken from an order directing the laying out of a highway has the force and effect of vacating the judgment or order, and that pending such appeal the case does not...
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