Opinion
July Term, 1808.
An appeal bond cannot be legally executed after the rise of the County Court, nor will the appeal be sustained unless the bond is executed in the County Court. The Superior Court cannot take a bond to sustain an appeal.
THE plaintiff prayed an appeal from the judgment of the County Court of Rowan, but did not execute an appeal bond until after the rise of said court. The transcript of the record was filed with the clerk of the Superior Court, and the defendant's counsel moved to dismiss the appeal, upon the ground that the appeal bond had not been legally executed; and the plaintiff moved for leave to execute an appeal bond in that court. The case was sent to this Court upon the question whether an appeal bond, taken after the rise of the County Court, is good to sustain the appeal; if not, whether the Superior Court can take a bond to sustain it.
From Rowan.
The act of Assembly regulating appeals from the County to the Superior Court declares, "that all persons dissatisfied with the judgment of the County Court shall be entitled to an appeal to the Superior Court; but before obtaining the same shall enter into bond with two sufficient securities for prosecuting the same (179) with effect." It seems, therefore, that the County Court have no power or authority to grant an appeal until they have received from the appellant a bond and adjudged that the security offered is sufficient. If, therefore, the party fail, during the sitting of the court, to obtain an appeal by executing a bond according to the provisions of the act, he is precluded forever thereafter from obtaining the same. The Court is therefore of opinion that this bond being executed after the rising of the County Court, the appeal intended to be prosecuted thereon cannot be sustained, and that the Superior Court have no authority to take a bond to sustain it. The appeal must therefore be dismissed.