Opinion
(December Term, 1843.)
1. On an appeal from the verdict of a jury in the county court assessing damages for the erection of a mill, the Superior Court has a right to permit the sheriff to amend his return of the verdict of the jury so as to set forth that they were sworn on the premises.
2. In the case of a petition for damages caused by the erection of a mill, under the act of Assembly (Rev. Stat., ch. 74), when there have been a verdict and judgment in the county court, the Superior Court has no right to dismiss the appeal of either party therefrom because of irregularity in the proceedings previous to the verdict or in the verdict itself. The trial must be had in the Superior Court as prescribed by that act.
APPEAL from Dick, J., at Fall Term, 1843, of CALDWELL.
E. F. Caldwell, Bynum, and J. H. Bryan for plaintiff.
Alexander for defendant.
The plaintiff filed his petition in the county court of Caldwell County in conformity to the provisions of the act of Assembly "concerning mills and millers" (Rev. Stat., ch. 74), in which he represented that he was the owner of a tract of land and a mill; that the defendant (35) was the owner of an adjoining tract and of a mill thereon lower down the stream, and that the defendant raised the water of the stream, by reason of his mill dam, so as to overflow the petitioner's land and submerge the water-wheel of the petitioner's mill, and the petitioner prayed that the court would direct the sheriff to summon a jury to go upon the premises and assess his damages. The defendant put in an answer to the petition, and the court ordered "that the sheriff should summon a jury, and that they report to the next term, according to the act of Assembly." To the next term a report was made purporting to be the verdict of the jury so summoned, wherein they assessed the damages sustained by the petitioner at $15 per year. The transcript, after setting forth these matters, then proceeds to the state, "with which verdict James Harper (the plaintiff), being dissatisfied, prayed an appeal to the Superior Court, which was granted, he having entered into bond and security as required by law." Upon the cause being carried up to the Superior Court, a motion was made on the part of the plaintiff to amend the return of the sheriff, setting forth the verdict of the jury so as to show that they were sworn on the premises, and the court ordered the amendment to be made, whereupon the defendant prayed, and the court gave him leave, to appeal from this interlocutory order. A motion was then made by the defendant to dismiss the appeal because the verdict of the jury was so defective as not to authorize a judgment in the county court from which the plaintiff could appeal, and thereupon it was ordered by the court that the appeal be dismissed. From this judgment the plaintiff appealed to this Court.
There is no error in the order from which the defendant appealed. The court has unquestionably the power to make the amendment under the extensive grant contained in the first section of (36) the act "Concerning the amendment of process, pleadings, and other proceedings at law." (Rev. Stat., ch. 3.) We presume that they exercised this power discreetly, and have no right to supervise the exercise of a discretionary power.
With respect to the dismission of the appeal to the Superior Court, we are of opinion that it is not warranted by any sufficient reason. The counsel for the defendant expressly waives the objection that no formal judgment was entered upon in the county court if the verdict can be deemed such as to warrant a judgment thereon. In waiving this objection, he not only conforms to the well-known indulgence which gentlemen of the profession uniformly show to the imperfect records of our county courts, but foregoes no right of his client, however technical, for it has been long settled in this State "that upon a verdict which, connected with the pleadings, authorizes a judgment; and where no judgment is formally entered, the courts intend such a judgment as ought to have been rendered." Barnard v. Etheridge, 15 N.C. 296.
It remains to be seen whether the verdict was so defective as not to authorize a judgment. The law directs that the jury shall assess the amount which the plaintiff ought annually to receive from the owner of the mill on account of the damages by the petitioner sustained. Surely this is distinctly done when, after setting forth that they were appointed to assess the damages between James Harper, plaintiff, and Elisha P. Miller, defendant, they report that in performance of that duty they assess the damages sustained by James Harper at $15 per year. To every fair intendment, this is a verdict that the plaintiff Harper receive from the defendant Miller annually the sum of $15 on account of the damages sustained by the plaintiff.
It is to be remarked, too, that no exception was taken by either party in the county court to the form of the verdict, and it does not appear that the defendant was dissatisfied with its substance. The plaintiff, who complains of the verdict, treats it as a valid one (37) followed by a judgment conforming thereto. We think that it cannot be allowed to the defendant to say there was no verdict, no judgment, and therefore the appeal of the plaintiff was a nullity. The act concerning appeals (Rev. Stat., ch. 4, sec. 2) declares that no appeal from the county court shall be dismissed for want of form if there appear sufficient matter of substance in the transcript to enable the Superior Court to proceed thereon.
In the argument here, the defendant raised objections to the regularity of the proceedings previous to the verdict. It is unnecessary to examine into the validity of these objections, and, if valid, whether they be not waived by not being brought forward in apt season. It is certainly a general rule that objections to proceedings because of irregularity should be made upon the first opportunity presented; and where there has been an irregularity, if the party overlook it and take subsequent steps in the cause, he cannot afterwards turn back to the irregularity and object to it. But at all events, whether the previous proceedings have been regular or irregular, there have been a verdict in this cause, and a judgment pursuant thereto, and therefore the plaintiff had a right to appeal therefrom. Appeals are expressly given "where either (party) is dissatisfied with the judgment of the court upon the verdict of the jury rendered upon the petition of any person alleging that he is injured by the erection of a public mill." Rev. Stat., ch. 4, sec. 2. And by section 17 of the act "concerning mills and millers" (Rev. Stat., ch. 74) special provisions are made as to the mode of trial upon such appeals and as to the consequences if, when the plaintiff appeals, he fail to recover higher damages than were awarded to him by the jury on the premises.
The Superior Court will reverse the order dismissing the appeal from the county court and proceed with the trial of the cause so brought before it by appeal, according to the usages of law.
PER CURIAM. Reversed.
(38)