Opinion
(February Term, 1888.)
Appeal — Undertaking — Presumption.
1. Nothing to the contrary appearing, it will be presumed that an undertaking on appeal was filed at the date of the justification. It is, however, competent to show that it was filed at another time.
2. The failure to give an undertaking on appeal within the prescribed time, is not such an irregularity as contemplated by the statute, Laws 1887, ch. 121.
AT THE Fall Term, 1886, of the Superior Court of the county of CLEVELAND, held in the month of October, of that year, Graves, J., presiding, the plaintiffs, appellees, obtained judgment in that court against the defendants, from which the latter appealed to this Court.
Platt D. Walker for plaintiffs.
W. P. Bynum for defendants.
The court made on the minutes of its proceedings in the case, this entry: "Defendants allowed thirty days to tender case and file appeal bond." The undertaking on appeal is filed without date, except that it was justified — just under it on the same paper — on 7 February, 1887.
When the appeal was called for argument, the appellees moved to dismiss it upon the ground that the undertaking on appeal was not filed within the time allowed by law, nor within the time allowed by the court.
We are constrained to allow the motion. It must be taken, nothing to the contrary appearing, that the undertaking on appeal was filed on the day it was justified, and this was quite three months next after the lapse of the time within which the court directed that it might be filed. It was held in Boyden v. Williams, 92 N.C. 546, that if the undertaking on appeal is without date, and the justification thereof has a date, the latter date must be taken as the date of the (478) filing thereof. The appellants might, however, have shown that the undertaking was, in fact, filed within the time allowed by the court. They did not offer to do so, and the inference is they could not.
This case does not come within the statute (Acts 1887, ch. 121, sec. 1). The failure to give the undertaking on appeal is not an "irregularity" within the meaning of that statute. Bowen v. Fox, 98 N.C. 396.
The appellees are entitled to have their motion allowed.
Appeal dismissed.