Summary
In Bryson v. Lucas, 85 N.C. 397, the court held, the undertaking not being justified, that an entry thereon of the words, "the within bond is good," was not a compliance with the statute prescribing how appeals shall be perfected.
Summary of this case from State v. WagnerOpinion
(October Term, 1881.)
Appeal — Bond for Costs.
Where a bond for costs of an appeal was not justified by the surety, but simply endorsed by the clerk — "the within bond is good;" Held not to be in compliance with the law for perfecting appeals.
MOTION by defendant for a restraining order and to vacate a judgment (rendered in MACON Superior Court) heard at Chambers on the 21st of September, 1881, before McKoy, J.
Messrs. Gray Stamps, for plaintiff.
Mr. J. H. Merrimon, for defendant.
His Honor granted a temporary restraining order but refused to vacate the judgment and the defendant appealed to this court. There was a motion here on the part of counsel for the appellee to dismiss the appeal, upon the ground the bond given to secure the costs in this court was not justified by the surety.
It is expressly declared in section 303 C. C. P. that, "an undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties that they are each worth double the amount specified therein." "To render an appeal effectual for any purpose a written undertaking must be executed on the part of the appellant with good and sufficient surety," c., and by section 310 C. C. P. it is declared that "an undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties that they are each worth double the amount specified therein.
This section has been interpreted at this term of the court in Hancock v. Bramlett to bear the same construction it did before the section 303 was amended by the act of 1871-'2 ch. 31 § 1, which provided that one surety was sufficient on an appeal bond for costs.
In this case the bond was not justified by the affidavit of the surety, but bore the endorsement of the clerk, to wit:
"The within bond is good." This we hold is not a compliance with the law for perfecting appeals, and is distinguished from the case of Hancock v. Bramlett supra., for in that case the presiding judge in the case on appeal states that the bond fixed at $25 is "filed and approved," and it was presumed that the bond was taken in open court under the supervision of the judge. But this bond is approved by the clerk, it may be privately, when the appellee had no notice of its being filed or any opportunity to object to its sufficiency.
The motion to dismiss must be sustained.
PER CURIAM. Appeal dismissed.