City of Kings Mountain v. Cline

Annotate this Case

188 S.E.2d 284 (1972)

281 N.C. 269

The CITY OF KINGS MOUNTAIN, a Municipal Corporation, Petitioner, v. Buford D. CLINE and W. K. Mauney, Jr., Trading as The Double B. Ranch, a Partnership, et al., Defendants.

No. 88.

Supreme Court of North Carolina.

May 10, 1972.

*287 Jack H. White, Kings Mountain, and Verne E. Shive, Gastonia, for the City of Kings Mountain.

Whisnant & Lackey, by N. Dixon Lackey, Jr., Shelby, for defendant appellants.

SHARP, Justice:

Appellants except to "each and every" finding of fact and conclusion of law and to the judgment. This broadside exception does not bring up for review the sufficiency of the evidence to support any particular finding of fact. It presents these questions only: (1) Do the facts found support the judgment, and (2) does error of law appear on the face of the record? Logan v. Sprinkle, 256 N.C. 41, 123 S.E.2d 209 (1961); State ex rel. Long v. Smitherman, 251 N.C. 682, 111 S.E.2d 834 (1959); Harriet Cotton Mills v. Local Union No. 578, 251 N.C. 413, 111 S.E.2d 529 (1959); 1 N.C.Index 2d Appeal and Error, §§ 26, 28 (1967). An assignment of error will not present a question unless it is based upon an exception set out in the case on appeal and numbered as required by Rule 21. Exceptions which appear for the first time in the assignments of error will not be considered. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955); 1 N.C.Index 2d Appeal and Error § 24 (1967). Thus, the questions debated in the briefwhether City negotiated in good faith for the purchase of the land described in the complaint, and whether condemnation of the fee in the land lying between contours 736 and 744 was for a public purpose and necessary for the operation and protection of the Buffalo Creek water projectare not presented for decision.

However, our examination of the record reveals that substantial competent evidence supports every finding of the clerk and the judge and that the findings support each judgment. Furthermore, all questions, except the question of just compensation, were rendered moot by the stipulation (quoted verbatim in the statement of facts) that City will acquire title to the lands upon posting the amount set forth in the petition and that defendants might withdraw the money from the clerk's office without prejudice to the right of "either side" to contest the amount of damages. This stipulation goes far beyond the right, which G.S. § 40-19 gives a municipality upon the payment into court of the sum appraised by commissioners, to "enter, take possession of, and hold" lands notwithstanding the pendency of an appeal, until final judgment has been rendered. See Topping v. North Carolina State Board of Education, 249 N.C. 291, 106 S.E.2d 502 (1958). In the face of the stipulation that upon payment of the sum mentioned in the petition ($44,562.60) City would "acquire title," defendants are estopped to contest City's right to condemn.

By this stipulation the parties have, in effect, agreed that City's payment of $44,562.60 should be treated as if it were *288 the amount of damages assessed by commissioners under G.S §§ 40-17 to 40-18 and thereafter paid into the office of the Clerk of the Superior Court under G.S. § 40-19. From this "award of damages" defendants have appealed to the Superior Court as provided in G.S. § 40-19, demanding a jury trial as provided by G.S. § 40-20.

All preliminary questions of fact having been resolved, only the amount of damages which defendants have suffered in consequence of City's condemnation of the land described in the complaint remains to be determined. The case is remanded to the Superior Court for the trial of that issue.

The judgment of the court below is

Affirmed.