Opinion
(February Term, 1885.)
Appeal Bond, When Must be Filed.
1. The undertaking on appeal must be filed within ten days after the rendition of the judgment.
2. Where an appeal bond has no date, it will be presumed to have been filed on the day that it is justified.
( Wade v. Newbern, 72 N.C. 498; Sever v. McLaughlin, 82 N.C. 332, cited and approved).
MOTION by the defendant to dismiss an appeal, heard at February Term, 1885, of the Supreme Court.
Messrs. Armfield Armfield, for the plaintiff.
Messrs. Haywood Haywood, for the defendant.
This was a CIVIL ACTION brought by the plaintiff against the defendant for the settlement of a partnership account.
The case was referred to a referee to take the account between the parties.
After the report of the referee was made and filed, the plaintiff, at Fall Term, 1884, of Catawba Superior Court, before Gilmer, Judge, moved for a jury trial. The motion was disallowed, and the plaintiff appealed to this Court.
When the case was called for argument in the Court the defendant appellee moved to dismiss the appeal on two grounds:
1. That the appeal bond was not filed within the time required by law.
2. That the appeal was not taken to the next term of the Supreme Court as required by law.
It is needless to consider the second ground, as the first is sufficient to sustain the motion of the defendant.
The law requires that the appeal bond shall be given within ten days after the rendition of the judgment. Wade v. City of Newbern, 72 N.C. 498; Sever v. McLaughlin, 82 N.C. 332.
The judgment was rendered at Fall Term, 1884, of Catawba Superior Court, which was held on the last Monday in August, 1884, and the bond was not filed until the 8th day of December, 1884.
The bond, in fact, has no date, but it was justified on the 8th day of December, and we must take it that it was filed on that day.
The motion of the defendant must be allowed and the appeal dismissed.
Appeal dismissed.