Holmes v. . Bullock , 178 N.C. 376 ( 1919 )

CLARK, J., concurs in part. This is a proceedings commenced by petitioners before the board of supervisors of Flea Hill Township (Cumberland County), for a cartway starting at a point on the national highway and extending along the lines of lands of defendants to a place near the (377) lands of O. L. Holmes, one of the petitioners. The petition was filed alleging that it was a public necessity that such a cartway should exist, as the petitioners and others were in great need of a road on which to go to church, to mills, schools, etc. From an order by the board of supervisors to lay out a cartway, the defendants appealed to the board of commissioners of Cumberland County, and said commissioners sustained the action of the supervisors, and ordered the cartway to be laid out; from this order the respondents, on 3 June, 1918, appealed to the Superior Court.

At September Term, 1918, the Superior Court, Lyon, J., presiding, signed an order granting petitioners leave to amend the petition so as to ask for a public road instead of a cartway, to which order respondents did not ask to enter an exception at the time; petitioners filed an amended petition on 5 October, 1918, and defendants filed an answer to same.

The case was tried at the March Term, 1919, and at this term defendants, for the first time, asked to be allowed to enter an exception to the order signed by the judge at September Term, 1918, and were allowed the exception as of March Term, 1919; this being after they had answered the amended petition.

There was a verdict and a judgment for petitioners. Defendants appealed. after stating the case: We need not consider the case upon its merits, as we are of the opinion that an error was committed in allowing an amendment, so as to convert the petition for a cartway into one for a public road or highway. The case came to the Superior Court, first, by appeal from the board of supervisors, which granted the cartway, to the board of commissioners of the county, and from a like decision of that board to the Superior Court. The board of commissioners acquired only the jurisdiction of the supervisors, before whom the proceeding was begun, and the Superior Court acquired the same jurisdiction. Neither of them had the power to amend the petition so as to change it to one of which the board of supervisors had no jurisdiction. "The board of supervisors shall have the right to lay out and discontinue cartways, and the board of commissioners of the county only shall have the right to lay out and establish and discontinue public roads: Provided, that in laying out and establishing roads and cartways, and for the purpose of assessing damage to property by reason of the same, no greater number of jurors than five shall be summoned or be required: Providedfurther, that either party may appeal from the decision of the board of supervisors to the board of commissioners of (378) the county." Revisal, sec. 2683; Consol. Statutes, vol. 1, pp. 995, 1004, ch. 69, secs. 131, 166; Const., Art. VII, sec. 2. The jurisdiction of the Superior Court was entirely derivative. It acquired only the jurisdiction of the board of supervisors to determine whether a cartway should be established. McLaurin v. McIntyre, 167 N.C. 350; Boyettv. Vaughan, 85 N.C. 365; Ijames v. McClamrock, 92 N.C. 365; Robeson v.Hodges, 105 N.C. 49; S. v. Wiseman, 131 N.C. 797. The supervisors had no jurisdiction of proceedings for the laying out of a public road. The board of commissioners had no jurisdiction of proceedings for establishing cartways, and did not exercise any such jurisdiction, but confined itself to deciding whether the prayer for a cartway should be granted. The Superior Court had no original jurisdiction over cartways or public roads, and could only acquire such jurisdiction over such a matter by appeal from a body that did have such a jurisdiction. In this case, under all the pertinent authorities, it only acquired, by the appeal, jurisdiction to try and determine the proceedings for a cartway. By the appeal, the sole jurisdiction of the Superior Court was derived through the board of commissioners, from the board of supervisors, whose only jurisdiction was of the proceedings for the cartway. In order to ascertain the precise jurisdiction of the Superior Court, we must, in turn, find out what was the limit of the jurisdiction of the board of supervisors.

The Superior Court was in error when it undertook to enlarge its own jurisdiction, and to enter upon the consideration of a proceeding which was not before it and which was coram non judice. Being without the power to extend its own jurisdiction by amendment, the order allowing it was void. But this does not dismiss the case, but merely strikes out the amendment and leaves the proceeding in the condition it was when the order of amendment was made. It is not necessary to consider the other questions as to the time the exception was entered.

It will be, therefore, certified to the Superior Court that there is error, with direction to strike out the order of amendment and reverse all proceedings thereunder, and then to proceed further in the cause, according to the law, to try the issue as to the cartway.

Error.