Sutphin v. . Sparger

64 S.E. 367, 150 N.C. 517, 1909 N.C. LEXIS 86

• Court: Supreme Court of North Carolina
• Decided: April 21, 1909
• Status: Published

Opinion

Clark, C. J.

The plaintiffs’ appeal did not put the case in the Superior Court.

1. The appeal. should have been taken at the April term of the county commissioners, when they confirmed the report of the road commissioners and ordered the changes in the road to be laid out and worked. McDowell v. Asylum, 101 N. C., 656. The plaintiff should'not have waited till after the work was done and the expense incurred by the public.

2. The plaintiff has further slept on his rights, in thqt when he did appeal he did not docket his appeal at the first term of the Superior Court thereafter, in November, 1908. Appeals from county commissioners are governed by the rules applying to "appeals,from justices of the peace (Blair v. Coakley, 136 N. C., 405), and must be docketed at the first ensuing term of the Superior Court. The docketing at February Term was a nullity. Davenport v. Grissom, 113 N. C., 38.

3. Besides, it seems that the plaintiffs did not give the appeal bond required by the Revisal, sec. 2690.

The new road having been laid off and worked, and the old road abandoned, it is a serious inconvenience to the public to enjoin the working of the new road, which alone can be used, for the old road has been discontinued and there is no authority to use it.

The restraining order was improvidently granted, and the motion to dissolve it should have been allowed. An order to that effect will be entered here. Griffin v. Railroad, ante, 312.

Reversed.