Opinion
(December Term, 1843.)
In the case of an appeal from the county to the Superior Court, where the cause has been continued for two years in the Superior Court and witnesses summoned on both sides, it is too late for the appellee to move to dismiss the appeal for the want of an appeal bond. He will be considered as having waived his right to a bond.
APPEAL from Bailey, J., at Fall Term, 1843, of WAKE.
Saunders and Miller for plaintiff.
W. H. Haywood for defendant.
Case commenced in the county court of Wake. A judgment having been rendered in that court against the plaintiff at May Term, 1841, he appealed to the Superior Court, but neglected to give an appeal bond. The cause was entered on the docket of the Superior Court of Wake at Fall Term, 1841, and continued at the several terms of the court until Fall Term, 1843. When the cause was called for trial on the second day of that term, the plaintiff declared himself ready, but the defendant having called his witnesses stated he was not ready, whereupon the cause was left open until the next day. On the next day the defendant moved to dismiss the appeal for the want of an appeal bond. The plaintiff then moved for leave to file a bond for costs and damages, which was refused. It appeared that a subpoena had been issued by the clerk of the Superior Court for the defendant's witnesses, returnable to the Fall Term, 1841. On the above facts, the court dismissed the appeal and gave judgment against the plaintiff for the costs of the Superior (60) and county courts.
From this judgment the plaintiff appealed to the Supreme Court.
At May sessions, 1841, of the county court of Wake the plaintiff appealed. The defendant, two years after the transcript of the record had been filed in the Superior Court, moved to dismiss the appeal because there was no appeal bond. The defendant, at any of the antecedent terms of the Superior Court, could have made the motion to dismiss; he did not do so, but went on and forced the plaintiff at one term to continue the cause by affidavit, and at another term he obtained leave of the court for time to prepare for the trial of the cause; he moreover had caused his witnesses to be subpoenaed to the first term of the Superior Court. It seems to us that this case is within the principle and reason of Wallace v. Corbitt, ante, 45. All the facts and circumstances disclosed by the case are, we think, sufficient to raise an implied waiver by the defendant of an appeal bond. The judgment must be
PER CURIAM. Reversed and procedendo.
Cited: Robinson v. Bryan, 34 N.C. 184; McMillan v. Davis, 52 N.C. 221; Council v. Monroe, ib., 397; Howze v. Green, 62 N.C. 251; Hutchison v. Rumfelt, 82 N.C. 426.
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