Sever v. McLaughlin, 82 N.C. 332 (1880)

Jan. 1880 · Supreme Court of North Carolina

82 N.C. 332

SEVER & WILD v. J. M. McLAUGHLIN.

Practice — Appeal Bond — Time of Filing.

All appeals will be dismissed on motion of the adverse counsel when the appeal bond is not filed within ten days from the rendition of the judgment appealed from, unless there is a waiver on the record or in. writing.

(Wade v. City of New Berne, 72 IST. 0., 498, cited and approved )

Civil Action tried at Spring Term, 1879, of Mecklen-burg Superior Court, before Kerr, J.

Verdict and judgment in favor of plaintiffs, and the defendant appealed.

Mr. A. Burwell, for plaintiffs.

Messrs. Wilson & Son, for defendant.

Asi-ie, J.

Upon the hearing in this court, the plaintiffs’ counsel moved to dismiss the appeal, on the ground that the appeal bond was not filed within the time required by law.

As appears from the record the judgment was rendered on the 3rd day of March, 1879, and the appeal prayed for and granted. The appeal bond bears date March the 20th, 1879, and there is an endorsement on the back of the bond by the clerk of the court that the bond was filed on the 29th day of April, 1879. Taking either date as the time of filing the bond, it was not done within ten days- from the rendition of the judgment appealed from, as required by law, and it does not appear from the record that there was any agreement between the counsel, waiving the time of complying with the rule. Wade v. City of New Berne, 72 N. C., 498.

This court has established the rule that all appeals will be dismissed, on motion of the adverse counsel, when the appeal bond is not filed within the ten days from the rendition of the judgment, unless there is a waiver on the record or in writing. This appeal must therefore be dismissed. Let this be certified.

Per Curiam. Appeal dismissed.

Same point decided in Wadsworth v. Carroll from Craven, (case not reported in full) at January Term, 1879, citing and approving Wade v. City of New Berne, 72 N. C., 498, as follows:

Dillard, J.

This was an action for breach of covenant of seizin, and the plaintiff by a motion in the cause sought an injunction to the sale of the premises advertised under a mortgage, and the plaintiff being dissatisfied with the order of the judge below appeals to this , court. The defendant moved to dismiss the appeal on the ground that there is no case of appeal, and that the appeal bond filed was not filed within the time prescribed by law, and the plaintiff moved for a writ of certiorari to bring up the appeal. .

On looking into the record, we find the appeal was taken and notice given on the 10th of September, 1878, and an appeal bond was executed and filed on the 1st of October, and there is no case of appeal. In Wade v. City of New Berne, 72 N. C., 498, this court decided that if an appeal bond is not given within ten day from the rendition of the judgment appealed from, the appeal -will be dismissed, and we adhere to that rule. The appeal is dismissed, but with leave to plaintiff to move for a certiorari, on laying proper ground therefor to bring up the case for review.

Per Curiam. Appeal dismissed.