Opinion
(January Term, 1816.)
Where the defendant appealed from the county to the Superior Court, but by mistake the plaintiff executed the appeal bond instead of the defendant, the appeal was dismissed for want of a proper bond; but a certiorari was directed on the defendant's motion.
THE plaintiffs obtained a decree in the County Court of WAKE against the defendants, as executors, for distributive shares. The defendants prayed an appeal, which was allowed. The appeal bond sent up to the Superior Court was executed by the plaintiffs. In the Superior Court the plaintiffs moved for leave to withdraw the bond filed with the transcript, and that the appeal should be dismissed. At the same time the defendants moved for a writ of certiorari in case the court sustained the plaintiff's motion. It was referred to the Supreme Court to say what judgment shall be entered in this case.
The act of 1777 requires that the party appealing shall give bond, etc. In this case the party praying the appeal gave no bond. That given by the plaintiffs (through error, no doubt) cannot be noticed for the purpose of giving the Superior Court cognizance of the suit. The appeal must, therefore, be dismissed for want of such a bond as the act requires from the party praying the appeal. And let a writ of certiorari issue in conformity with the defendant's motion. (318)
NOTE. — See Hood v. Orr, post, 584.