Opinion
(June Term, 1851.)
Where, in an appeal bond given by the defendant, the plaintiff's name is omitted, although the court at the first term would dismiss the appeal unless the defendant gave a sufficient bond, yet they will not do so as a matter of course when several terms have elapsed.
APPEAL from Manly, J., at BLADEN Spring Term, 1851.
The suit began in the county court, and was there tried on issues, and the plaintiff had a verdict and judgment in February, 1849. The defendant appealed, and in filling up the appeal bond the name of the plaintiff as the obligee was omitted by the clerk. The defendant filed the transcript in the Superior Court before the next term, which was in April, 1849, and each party summoned witnesses, and the suit pended until April Term, 1851; and then the plaintiff moved to dismiss the appeal for the defect in the bond. The court allowed the motion, and the defendant appealed.
W. Winslow for plaintiff.
Strange for defendant.
If the motion had been made at the first term it would have been proper to allow it unless the defendant had then offered to give a sufficient bond. McDowell v. Bradley, 30 N.C. 92. So, if the defendants were not of substance to answer the plaintiff's recovery made and the costs, the court might have laid them under a rule to give a proper bond which would secure the plaintiff. There was no (184) suggestion of that kind, but the plaintiff insisted peremptorily that the court should not entertain the appeal by reason merely that an appeal bond had not been duly given. Now the omission to make that motion for two years after the case was in the Superior Court for trial is, according to the established practice, such laches as deprives the appellee of the right to make it at all. Wallace v. Corbit, 26 N.C. 45; Arrington v. Smith, id., 59.
PER CURIAM. Reversed, and procedendo.
Cited: Russell v. Saunders, 48 N.C. 432; Stickney v. Cox, 61 N.C. 496; Hutchinson v. Rumfelt, 82 N.C. 427.