Brittain v. . Howell
Supreme Court of North Carolina
This action was brought in the Superior Court of Macon county, and the defendant appeared and plead in bar at the Fall Term of 1835. At the next term the trial was, upon affidavit, removed to Buncombe Superior Court, in which the transcript was filed at the Spring Term of 1836. In the last term, to wit, the Fall Term, 1833, of Buncombe Superior Court, the defendant moved to dismiss the suit, because there was no prosecution bond on file.
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This action was brought in the Superior Court of Macon county, and the defendant appeared and plead in bar at the Fall Term of 1835. At the next term the trial was, upon affidavit, removed to Buncombe Superior Court, in which the transcript was filed at the Spring Term of 1836. In the last term, to wit, the Fall Term, 1833, of Buncombe Superior Court, the defendant moved to dismiss the suit, because there was no prosecution bond on file. The plaintiff was not able to establish that he had given a bond to the clerk of Macon Court; but he then tendered in court a bond with sufficient sureties…
1Opinion of the Court
Ruffin, Chief Justice,
having stated the case, proceeded : — We regret that his Honor allowed so frivolous an appeal from an interlocutory judgment. If the statute positively commanded the suit to be dismissed for want of a prosecution bond, it would not mean that it should be done, unless the motion was made at a proper time — that is, before any steps have been taken in the cause preparatory to a trial. Doubtless, the court will always see that the defendant is sufficiently secured in his costs, and at any stage of the case will direct a bond to be given within a reasonable time, and in…
2Cited by4 opinions
- Mintz v. . FrinkSupreme Court of North Carolina · 1940
- Cooper v. . WarlickSupreme Court of North Carolina · 1891
- Albertson v. . TerrySupreme Court of North Carolina · 1891
- Goode v. . Chair Co.Supreme Court of North Carolina · 1932