Robinson v. Bryan, 34 N.C. 183, 12 Ired. 183 (1851)

June 1851 · Supreme Court of North Carolina
34 N.C. 183, 12 Ired. 183
HEMAN H. ROBINSON vs. JOSHUA BRYAN & AL.

HEMAN H. ROBINSON vs. JOSHUA BRYAN & AL.

Where, in an appeal bond given by the defendant, the plaintiff’s name is omitted, although the Court at the first term would dismiss the appeal un - less the defendant gave a sufficient bond, yet they will not do so as a matter of course, when several terms have elapsed.

The cases of McDowell v Bradley, 8 Ire. 92, Wallace v Garbit, 4 Ire. 45, and Arrington v Smith, 4 Ire, 59, cited an'd approved.

Appeal from the Superior Court of Law of Bladen County, at the Spring Term, 1851, his Honor Judge Manly presiding.

'The suit began in the County Court and was there tried on issues, and the plaintiff had a verdict and judgment in February 1849. The defendant appealed, and in filling up the appeal bond the name of the plaintiff, as the obligee, was omitted by the Clerk. The defendant filed the transcript in the Superior Court before the next term, which was in April 1849, and each'party summoned witnesses and the suit pended until April term 1851; and then the plaintiff moved to dismiss the appeal for the defect in the bond. The Court allowed the motion, and the defendant appealed.

W. Window, for the plaintiff.

Strange, for the defendant.

Ruffin, C. J.

If the motion had been made at the first term it would have been proper to allow it, unless the defendant had then offered to give ‘ a sufficient bond. McDowell v. Bradley, 8 Ire. 92. So, if the defendants were not of substance to answer the plaintiff’s recovery made and the «costs, the Court might have laid them under a rule to *184give a proper bond, which would secure the plaintiff. There was no suggestion of that kind, but the plaintiff insisted peremptorily, that the Court- should not entertain the appeal, by reason, merely, that an appeal bond had not been duly given. Now the omission to make that motion, for two years after the case was in the Superior Court for trial, is, according to the established practice, such laches as deprives the appellee o( the right to make it at all. Wallace v. Corbit 4 Ire. 45 ; Arrington v. Smith, 4 Ire. 59.

Pee. Curiam. Judgment reversed, and a procedendo awarded.