Bailey v. Rutjes, 91 N.C. 420 (1884)

Oct. 1884 · Supreme Court of North Carolina

91 N.C. 420

J. M. BAILEY v. A. J. RUTJES.

Appeal.

Motion to dismiss appeal will be allowed where there is no waiver of the undertaking and no money deposit in lieu thereof, and where the bond is not justified in double the amount specified therein.

(Harshaw v. MeDowell, 89 N. C., 181, cited and approved.)

Motion by plaintiff to dismiss an appeal, heard at October Term, 1884, of The Supreme Court.

Messrs. Sinclair and Batchelor & Devereux, for plaintiff.

Messrs. Folk,.and Recede, Busbee & Busbee, for defendant.

Merrimon, J.

It does not appear by the record or otherwise in writing, that an undertaking upon appeal was waived by the appellant, or that a sum of money in lieu of such undertaking was deposited with the clerk by order of the court. It does appear, however, that an undertaking was given, but it was not properly justified by a surety thereto. He fails to make affidavit in connection therewith, “ that he is worth double the amount specified therein.”

The appellee, for the causes mentioned, moved to dismiss the appeal. It is obvious that he is entitled to have his motion allowed. In the absence of an undertaking duly justified, the appeal has “no effect.” The Code, §560; Harshaw v. McDowell, 89 N. C., 181.

Motion allowed.