Russell v. Saunders, 48 N.C. 432, 3 Jones 432 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 432, 3 Jones 432

DANIEL W. RUSSELL, ADM’R., vs. DAVID W. SAUNDERS, EX’R.

The giving of a prosecution bond is not a condition precedent to the bringing of a suit, and it is not error for a Court to permit one to be filed, after the writ is returned.

Motion to dismiss a suit for the want of a prosecution bond, beard before Saunders, Judge, at the last Superior Court of Onslow.

The writ was returned to the County Court of Onslow, without any prosecution bond, and the defendant moved to dismiss for that cause; the Court refused to dismiss, hut allowed the plaintiff to file a bond at tbat Court.

The defendant appealed to tbe Superior Court, when, in that Court, it was moved to dismiss the appeal. This was ordered by his Honor, and the defendant appealed to the Supremo Court.

Strange, for plaintiff.

Moore, for defendant.

Pearson, J.

We consider the point made in this case, settled by McDowell v. Bradley, 8 Ire. Rep. 92 ; the Court say, “ Rut, we think, the new bond was an answer to tbe defendant’s motion, for it fully meets the purposes of the act, and the ends of justice, by effectually securing tbe appellee, and substantially, by the means prescribed in tbe statute. Although the proper bond was not taken at tbe proper time, yet the Court has thqpower to supply the omission, as was done with respect to certiorari bonds, in the case of Fox v. Steele, 1 Car. Law Rep. 379.

So, we think, in this case, the new bond was an answer to the defendant’s motion. McDowell v. Bradley, has been cited and approved in several subsequent cases. Robinson v. Bryan, 12 Ire. 183. There is no reason why prosecution bonds, appeal bonds, and certiorari bonds, should not be put on the same footing. Such has been the uniform practice and understanding of the profession.

It was insisted by the defendant’s counsel, in the second place, that the appeal from the interlocutory order, brought the whole case up to the Superior Court, and took it out of the County Court; so that after affirming the judgment of the County Court, in respect to the bond, the Superior Court ought to have retained the case, and proceeded with the trial.

We do not concur in this position. If the County Court had dismissed the suit, so as to put the case out of that Court, upon an appeal or reversal of the order of the County Court, the further proceedings in the case would have been properly in the Superior Court. Shaffner v. Fogleman, Busb. 280. But, as the County Court refused to dismiss the suit, and permitted the plaintiff to file a prosecution bond, the case was still in that Court, notwithstanding the plaintiff appealed from this interlocutory order; and upon an affirmance of the order, the further proceedings in the case, were properly to be had in the County Court. Mastin v. Porter, 10 Ire. 1, is in point; there & procedendo issued.

The entry, that the Superior Court “dismissed the appeal” and affirmed the judgment of the County Court, is evidently a misprision of the Clerk. The proper judgment was to affirm the judgment of the County Court, in respect to the order appealed from, and direct aprocedendo.

Per Curiam.

Judgment affirmed.