Hanes v. North Carolina Railroad

A very, J.: The statute (The Code, §1946) provides that “the Court or Judge on the hearing, may direct a new appraisement, modify or confirm the report, or make such order in the premises as to him shall seem right and proper.” If under the general statuté regulating special proceedings (The Code, § 116), the plaintiff had the right before commissioners were appointed to insist that the Clerk should frame an issue involving the question of damages and transmit the case to be tried in term time by a jury, he could not, after acquiescing in the order appointing commissioners and thereby assenting to that mode of trial, reassert and enforce that right after waiving it, and when he discovered that, under the mode of trial agreed to, if not selected by him, the findings were not so favorable to him ashehad expected. Railroad v. Parker, 105 N. C., 246. “ The Judge might have heard the affidavits both of defendant and the plaintiff” as a help or guide in the exercise of the broad discretion given him by the statute. Skinner v. Carter, 108 N. C., 106. While his refusal to hear them, nothing more appearing, is not necessarily reviewable in this Court, as it would have been presumed that he did so in the exercise of the power conferred by the statute, it was error to refuse to hear the affidavits on the ground that he had no legal power to pass upon them. He had authority unquestionably to set aside the report, and to direct a new appraisement by the same commissioners or others appointed in their stead, on the ground that he thought the damage assessed was excessive, even though we should concede that, *493 under the ruling of this Court in Railroad v. Ely, 101 N. C., 8, the Judge could no more modify the. findings of the commissioners in that respect by substituting a smaller sum, than he could make the same change in the verdict of the jury. Skinner v. Carter, supra ; The Code, § 1946. He was clothed with the discretionary power to confirm the report, if such course seemed to him in all respects fair and proper, or “to make such order as seemed just,” though he could no more annul the order appointing the commissioners, and then direct an issue to be tried by a jury, than he could have vacated a consent order of reference when one of the parties objected. But while the Judge could not have called a jury, in aid of his conscience, to find the facts, how could he ascertain whether it was his duty to set aside the report and direct a new assessment by the same or other commissioners, or to remand the case again for anew assessment, as he might have done (Skinner v. Carter, supra), unless he was at liberty to hear testimony in the form of affidavits, as on a motion to grant or dissolve an order of injunction, or in other cases where he was empowered to review the facts ? We concur with his Honor in the view that the description was not fatally defective, because the location of the right-of-way could be, and doubtless has been, made certain, so long as the road-bed#shall be used, as a given number of feet from the known location of the track on either side. In certum est, quod certum reddi potest. Beattie v. Railroad, 108 N. C., 425. The requirement of the statute, The Code, § 1946, that the commissioners should attach a seal to their signature was unquestionably merely directory, not mandatory, as was declared by the Court below. The Clerk could not more readily vouch for the genuineness of a report, filed by persons selected by him, because a seal was added to the signature, and the failure to append the seal does not in any way affect a substantial right of 'either of the parties. The *494 Code, § 289; Lineberger v. Tidewell, 104 N. C., 506; Matthews v. Joyce, 85 N. C., 258. For the error in resting the refusal to hear affidavits upon the ground that he had no legal power to hear them in their bearing upon the question of setting aside the appraisement, the judgment is reversed, and the cause will stand for hearing upon the exceptions to the report of the commissioners filed before the Clerk. Error.