McDowell v. . Bradley
Supreme Court of North Carolina
Appeal from the Superior Court of Law of Edgecombe County, at the Fall Term, 1847, his Honor Judge Battle presiding. This suit was brought in the County Court, and, after a verdict and judgment against the plaintiff, he appealed to the Superior Court; but he gave bond with only one surety. At the term at which the transcript was filed, the defendant moved to dismiss the appeal, because there was but one surety to the appeal bond.
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Appeal from the Superior Court of Law of Edgecombe County, at the Fall Term, 1847, his Honor Judge Battle presiding. This suit was brought in the County Court, and, after a verdict and judgment against the plaintiff, he appealed to the Superior Court; but he gave bond with only one surety. At the term at which the transcript was filed, the defendant moved to dismiss the appeal, because there was but one surety to the appeal bond. The plaintiff then shewed, that the defendant had, during that term, summoned witnesses; and, by leave of the Court, he filed a new bond with two sufficient sureties…
1Opinion of the CourtRuffin, C. J.
The Court thinks the decision of his Honor right. No weight is allowed to the circumstance, that the defendant took out subpoenas, as he might not then have known of the deficiency in the bond ; and the motion, we think, is in due time at the first term and before the trial begins. It is not within any of the cases, in which it has been held that the appellee waived his right to a better bond by his laches ; for in neither of them was the motion at the first term. Ferguson v. McCarter, No. Ca. T. R. 107. Wallace v. Corbit, 4 Ired. 45. Unless waived by his delay, the statute expressly requires…
2Cited by3 opinions
- Ferguson v. . McCarterSupreme Court of North Carolina · 1817
- Fox v. . SteeleSupreme Court of North Carolina · 1814
- Rosseau v. . ThornberrySupreme Court of North Carolina · 1816