Opinion
(February Term, 1885.)
Appellate term of Supreme Court.
When an action is tried at a term of a Superior Court which term expires less than ten days' before the next term of the Supreme Court begins, the appellate term of the latter court for such action is that which begins next after the expiration of the time allowed by law for perfecting the appeal.
CIVIL ACTION, tried at Fall Term, 1884, of the Superior Court of CHOWAN COUNTY, before Graves, J.
Messrs. Reade, Busbee Busbee, for plaintiff.
Messrs. Pruden Vann, for appellee.
The court intimating an opinion that the plaintiff could not maintain his action, he submitted to a nonsuit and appealed.
In this court there was a motion to dismiss the appeal.
The cause being on trial at the term of the Superior Court of Chowan, begun and held on the first Monday after the fourth Monday in September, 1884, the court intimating an opinion against the plaintiff's right to maintain the action, he submitted to a nonsuit and appealed. The term of the court, limited to a single week, expired on Saturday, the 27th day of that month, and the appeal undertaking in the sum fixed by the court was perfected by a justification of the sufficiency of the sureties before the clerk on the 6th day of October, none days after the termination of the Superior Court and on the first day of the session of the Supreme Court. The transcript was sent up and filed on the 22nd day of January, 1885.
The counsel for the appellees moved to dismiss the appeal, assigning as the ground therefor, that the appeal was not taken to the term of this court next after the rendition of judgment in the court below.
The appellant had ten days in which to perfect his appeal, that is, to comply with all the statutory requirements to render it effectual, and among them are the execution and justification of the undertaking. Until this was done the case was not in a condition to be sent up. The term next ensuing the completion of this prerequisite is the present, and the transcript is filed in time under the rule.
The motion must therefore be disallowed, and the cause remain for hearing.