Opinion
June Term, 1822.
If the appellee in the Superior Court suffers the cause to go to the jury, it is an implied waiver of an objection arising from the defectiveness of the appeal bond.
THIS case came before this Court, 8 N.C. 341. It is now here on a motion by Wood, one of the defendants, to dismiss the appeal on the ground of a formal defect in the appeal bond. The cause had once been submitted to a jury. At March Term, 1822, the Superior Court of BERTIE sustained the appeal and overruled the motion to dismiss, and Wood appealed. The facts appear in the opinion of the Court.
The appeal was taken up to March Term, 1820, of Bertie, at which time it was continued. At the subsequent term, commissions were moved for by Wood, and the cause was continued. At March Term, 1821, the jury was impaneled, and from the judgment then rendered the first appeal was brought to this Court, where it was decided at June Term, 1821. It was not until March Term, 1822, that a motion was made in the Superior Court of Bertie to dismiss the appeal. This must be considered as an implied waiver of any defect in the appeal bond, according to Ferguson v. McCarter, 4 N.C. 544.
PER CURIAM. Affirmed.
Cited: S. v. Mitchell, 19 N.C. 238.