Turner v. Quinn, 91 N.C. 92 (1884)

Oct. 1884 · Supreme Court of North Carolina

91 N.C. 92

GEORGE TURNER, Adm’r, v. J. D. QUINN, Adm’r.

Appeal Bond.

An appeal bond is of no effect unless it be accompanied by the affidavit of one of the sureties that he is worth double the amount specified therein. The Code, § 560. •

{Lytle v. Lytle, 90 N. O., 647; Bryson v. Lucas, 85 N. C., 897, cited and approved.)

Civil Action tried at Fall Term, 1884, of Jones Superior Court, before Shepherd, J.

The defendant appealed, and upon call of the case in this court the plaintiff moved to dismiss the appeal for the reasons stated in the opinion here.

Mr. S. W. Isler, for plaintiff. .

Messrs. Faircloth & Allen, for defendant.

Ashe, J.

The appeal bond sent up with the record to this court is justified as follows; “ Personally appeared heme R. C. Broadhurst who, being duly sworn, says he is worth the amount of the above bond over and above his homestead and personal property exemption and personal liabilities.”

In this court there was a motion by the appellee to dismiss the appeal, because the appeal bond was not justified according to law, in that, neither the surety nor principal thereto stated upon oath that he was worth double the amount of the said bond over and above his exemptions and liabilities, &c.

. The statute is peremptory, that an undertaking upon appeal shall be of no affect unless it be accompanied by the affidavit of one of the sureties that he is worth double the amount specified therein. The Code, § 560. Theobjection is well taken. Lytle v. Lytle, 90 N. C., 647 ; Bryson v. Lucas 85 N. C., 397.

The motion of the appellee must be allowed and the appeal dismissed.

Appeal dismissed.