Opinion
(December Term, 1847.)
1. Where a party, appealing from the County to the Superior Court, has given but one surety on his appeal bond, the Superior Court, may supply this defect by permitting the appellant to give a bond with two sureties in the latter court.
2. On such a bond the same summary judgment may be rendered as if it had been regularly taken in the County Court.
APPEAL from the Superior Court of Law of EDGECOMBE, at Fall Term, 1847, Battle, J., presiding.
No counsel for plaintiff.
B. F. Moore for defendant.
This suit was brought in the Country Court, and after a verdict and judgment against the plaintiff, he appealed to the Superior Court; but he gave bond with only one surety. At the term at which the transcript was filed the defendant moved to dismiss the appeal because there was but one surety to the appeal bond. The plaintiff then showed that the defendant had, during that term, summoned witnesses, and, by leave of the court, he filed a new bond with two sufficient sureties for the prosecution of the appeal. Whereupon the court refused the defendant's motion, but allowed him an appeal.
The Court thinks the decision of his Honor right. No weight is allowed to the circumstance that the defendant took out subpoenas, as he might not then have known of the deficiency in the bond; and the motion, we think (93) is in due time at the first term and before the trial begins. It is not within any of the cases in which it has been held that the appellee waived his right to a better bond by his laches, for in neither of them was the motion at the first term. Ferguson v. McCarter, 4 N.C. 544; Wallace v. Corbit, 26 N.C. 45. Unless waived by his delay the statute expressly requires that number at least; and the court would have been bound to dismiss this appeal if such a bond had not been given. But we think the new bond was an answer to the defendant's motion, for it fully meets the purposes of the act and the ends of justice by effectually securing the appellee, and, substantially, by the means prescribed in the statute. Although the proper bond was not taken at the proper time, yet the Court has the power to supply the omission, as was done with respect to certiorari bonds in the cases of Fox v. Steel, 4 N.C. 48, and Rosseau v. Thornberry, 4 N.C. 326. The act of 1810, Rev. Stat., ch. 4, sec. 16, requires the clerk of the County Court to take the bond, as in cases of appeals, and send it up with the record; yet upon a motion to dismiss for the want of such a bond the plaintiff in the certiorari was allowed to give a proper bond in the Superior Court.
It was argued that this plaintiff should have been put to his certiorari, because on the bond then to be given there would be a summary judgment, which cannot be on the present one. If there were the difference in the remedy supposed it does not follow that the delay and expense should be thrown on the plaintiff, which would arise from dismissing the appeal. But, we think, the objection is founded on a mistake as to the remedy. It is clearly in the power of the court to require from time to time further security for the costs from the plaintiff, and the sureties in the new bonds are bound for all the costs, at whatever period accrued; and, certainly, since the act of 1831, Rev. St., ch. 31, sec. 133, they are liable summarily. The acts giving the summary judgments, being remedial, are to be (94) construed literally, as authorizing judgments on motion upon all bonds given at any stage of the case for the prosecution of a suit on an appeal.
This opinion will be certified to the Superior Court.
PER CURIAM. Ordered accordingly.
Cited: Robinson v. Bryan, 34 N.C. 183; Russell v. Saunders, 48 N.C. 432; Stickney v. Cox, 61 N.C. 496; Wall v. Fairly, 66 N.C. 386.