The plaintiff and others had petitioned the county court of Cherokee to have a public road laid out. Notice was given as required by the act of Assembly. The defendant and others appeared and opposed the prayer of the petition. The court ordered a jury, who made a report which was confirmed by the court and the road directed to be laid off. The defendant appealed to the Superior Court, and there objected to the legality of the proceedings, and contended that they were void, because, first, two of the jury were not freeholders (and in support of this exception proof was made); and, secondly, because one of the petitioners was on the jury which surveyed and laid off the road. These objections were (169) overruled. The defendant's counsel then offered to prove by one of the jury that he himself did not assent to the report, but this was also not allowed. The court then heard the case on its merits upon oral testimony and gave judgment for the petitioners, and ordered their judgment to be certified to the county court. From this judgment the defendant appealed. The same points have been made before us as were raised in the Superior Court. In our opinion, the exceptions urged against the regularity of the proceedings before the jury and of the jury ought to have been taken in the county court when the report was returned, by a motion to quash the proceedings. This does not appear to have been done, and after an appeal from the final judgment of that court upon the merits of the dispute, the cause was to be heard and determined in the Superior Court upon the merits. This was done there, and we are bound to presume was rightfully done.
We see no sufficient cause to reverse the judgment of the Superior Court.
PER CURIAM. Affirmed.
Cited: Ashcraft v. Lee, 75 N.C. 158.
(170)