Hemphill v. Blackwelder, 90 N.C. 14 (1884)

Feb. 1884 · Supreme Court of North Carolina

90 N.C. 14

^*F. B. HEMPHILL and others v. L. C. BLACKWELDER.

Appeal dismissed for want of justification of bond.

The court express astonishment that appeals should be taken without perfecting them according to law, and say, that if they were disposed to grant relief against such negligence, they have no authority to do so.

MotioN by defendant to dismiss an appeal from McDowell Superior Court, heard at February Term, 1884, of Ti-ie Supreme Court.

Messrs. IF. H. Malone and. Robbins & Long, for plaintiffs.

Mr. G. N. Folk, for defendant.

* The case of Fleming v. Burgin, from McDowell, was also dismissed for the reason assigned in this case. Mr. W. W. Fleming, for the plaintiff, appellant and Mr. O. N. Folk, for the defendant appellee.

Merrimon, J.

The undertaking upon appeal in this case, we find attached to the transcript of the record, but it is not justified. No “written consent on the part of the respondent,” the appellee, waiving the undertaking properly justified appears on file or in the record.

For this cause, the appellee moves to dismiss the appeal, and it is manifest that he is entitled to have his motion allowed. McMillan v. Nye, decided at this term, ante, 11.

It is not improper to say here, that it is a matter of astonishment to the court, that intelligent gentlemen engaged in the practice of the law persist in sending appeals to this court without perfecting them as required by the plain, peremptory requirements of the statute. If the court were disposed to grant relief against such negligence, it has no authority to do so. Motion allowed.

Appeal dismissed.