Jones v. Asheville

Full title: LAURA E. JONES v. THE CITY OF ASHEVILLE ET AL

Court: Supreme Court of North Carolina

Date published: Feb 1, 1894

19 S.E. 631 (N.C. 1894)

114 N.C. 620

Opinion

(February Term, 1894.)

Practice — Appeal Bond, Failure to File — Motion to Dismiss — Notice.

1. The discretion vested in this Court by chapter 135, Acts 1889, to permit an appeal bond to be filed here will not be exercised unless reasonable excuse be shown for the failure of appellant to file it below.

2. No notice is required to be given of a motion to dismiss an appeal when no appeal bond has been filed; the twenty days notice required for a motion to dismiss by chapter 121, Acts 1887, applies only when there is an irregularity in the bond or in the justification of sureties.

F. A. Sondley and J. H. Merrimon for plaintiff.

Charles M. Stedman for defendant.

(APPEAL OF DEFENDANT CAMPBELL.)

CLARK, J.

In this cause no appeal bond appears to have been given, and the appellee moves to dismiss. The defendant presented no good excuse for the failure, but offered to file the bond here. In Harrison v. Hoff, 102 N.C. 25, it was held that the discretion vested in this Court by chapter 135, Laws 1889, to permit an appeal bond to be filed here would not be exercised unless the appellant shows a reasonable excuse for his failure to give the undertaking below as required by the (621) Code, secs. 549 and 552. In that case Merrimon, J., said: "Whether the power will or will not be exercised must depend largely upon the facts and circumstances of each case. It may be said, however, that in all cases the appellant must show reasonable cause for his failure to give the undertaking promptly, as required by law, else relief will not be granted. It is no part of the purpose of the statute to excuse or encourage gross neglect." No notice is required of a motion to dismiss when no appeal bond is filed. The twenty days notice required for a motion to dismiss by chapter 121, Laws 1887 (Clark's Code, sec. 560), applies only when there is a mere irregularity in the undertaking on appeal or in the justification of the sureties.

Appeal dismissed.

Cited: Vivian v. Mitchell, 144 N.C. 474; Hawkins v. Tel. Co., 166 N.C. 214; Transportation Co. v. Lumber Co., 168 N.C. 61.

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