Brittain v. Howell, 19 N.C. 107, 2 Dev. & Bat. 107 (1836)

Dec. 1836 · Supreme Court of North Carolina

19 N.C. 107, 2 Dev. & Bat. 107

BENJAMIN S. BRITTAIN v. NELSON G. HOWELL.

After the plaintiff has been permitted to go on and prepare his ease for trial, the court will not, upon the motion of the defendant, make a peremptory order dismissing the suit for want of a prosecution bond, but will permit the plaintiff then to prepare and file such bond. The sole object of the bond is to secure the defendant; and the court will use its power in regard to it, so as to protect him, and advance the purposes of justice.

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 for the prosecution of the suit, which his Honor Judge Dick permitted him to file; and thereupon the motion of the defendant was overruled, and he prayed an appeal; which was allowed him.

No counsel appeared for either party in this 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 default thereof, will dismiss the suit. But it would be a gross surprise to make a peremptory order of dismission, after the defendant had suffered the plaintiff to go on for two terms in his own county, and reach the second term in Buncombe. The sole object of the bond is to secure the defendant; and the court will use its power in regard to it so as to protect him and advance the purposes of justice. The bond tendered by the plaintiff fully answered those purposes. Bonds are thus taken in cases of certiorari. Rosseau v. Thornberry, 2 Law Repos. 442; and the sureties are charged in appeals. Lavender v. Pritchard, 2 Hayw. 337. M‘Culloch v. Tyson and Person, 2 Hawks, 336. And an appeal bond even may be waived by going to trial. Ferguson v. M‘Carter, N. C. Term Rep. 101. In fine, the court will render effectual the purpose of the legislature in requiring a bond, by providing a proper indemnity at any stage of a cause; but justice must not be stifled by dismissing the suit, when the plaintiff offers to do the very thing the other side complains he has not done. The order of his Honor, we think is proper; and it must be so certified to the Superior Court. The defendant must pay the costs in this court.

Per Curiam. Judgment affirmed.