Opinion
(January Term, 1868.)
The clerk of a county court having transmitted to the Superior Court a case in which an appeal had been obtained by the plaintiff, no appeal bond being filed by inadvertence: Held, that upon such bond being filed in the Superior Court after a motion to dismiss for want thereof, it was probably competent for that court to refuse such motion; and that at all events, it was proper to grant an application for a certiorari, and then to place the case upon the trial docket.
( McDowell v. Bradley, 8 Ire., 92; Robinson v. Bryan, 12 Ire., 183; Murray v. Shanklin, 4 Dev. Bat., 276, cited and approved.)
CERTIORARI, before Fowle, J., at Fall Term, 1867, of the Superior Court of PITT.
Bragg for appellant.
Fowle Badger, contra.
The petitioner had brought an action of debt against the defendants in the county court. Having been nonsuited, he appealed, but from a misunderstanding upon that point by his attorney, no appeal bond was given. In the Superior Court the defendants moved to dismiss the appeal for want of a bond. Thereupon the plaintiff offered to file such bond, but the court declined to allow it, and dismissed the appeal.
The plaintiff then filed this petition setting forth the facts upon which arose the misunderstanding that no appeal bond was required by defendants.
His Honor having ordered the petition to be placed upon the argument docket, afterwards, upon consideration and hearing the evidence, ordered the case to be entered upon the trial docket. From this order the defendants appealed.
We agree with his Honor in the court below that the cause ought to have been placed on the trial docket. We are inclined to think upon the authority of the cases of McDowell v. Bradley, (496) 8 Ire., 92, and Robinson v. Bryan, 12 Ire., 183, that his Honor would have been warranted in allowing the plaintiff to file an appeal bond, in answer to the motion of the defendant to dismiss the appeal for the want of a bond. In both those cases the appeal bonds were so defective, that the new bonds had to be filed to sustain the appeal which the appellant had craved in the county court and which he was desirous to prosecute. In the present case, though no bond was filed, yet the plaintiff had asked for an appeal, which had been granted, and he by no means intended to abandon it. The bond which he offered to give in the Superior Court fully met the purposes for which such a bond was required, to wit, the effectual securing the appellee, and that substantially by the means prescribed in the statute. McDowell v. Bradley, supra. If this were so, then it is certain that, though his Honor though it his duty to dismiss the appeal, he was fully justified in ordering a certiorari, and, upon its return, placing the case on the trial docket.
But, supposing that his Honor was bound in law to dismiss the appeal for the want of a bond, yet we think that the circumstances of the case authorized him to allow the case to be brought up to the Superior Court by the writ of certiorari, which in a proper case has always been used as a substitute for an appeal. Murray v. Shanklin, 4 Dev. Bat., 276.
The interlocutory order must be affirmed, and this opinion certified to the court below as in such cases the law directs.
PER CURIAM. Order affirmed.
(497)