Opinion · Supreme Court of North Carolina

Lytle v. . Lytle

Lytle v. . Lytle, 90 N.C. 647 (N.C. 1884)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1884-02-05
Topic
general

MerrijjoN, J. The appellee moved to dismiss the appeal upon the ground that the undertaking upon appeal had not been justified as required by the statute. It does not appear in the record, or otherwise, that the undertaking, or a deposit of money with the clerk, ordered by the court, was 'waived by a “written consent on the part of the respondent,”*the plaintiff. An affidavit of the surety accompanies the undertaking upon appeal, but it is fatally defective, in that it does not state that'the affiant “is worth double the amount specified therein.” The statute is peremptory in requiring this fact to be stated. Harshaw v.

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Cited by
3 opinions
LYTLEv. LYTLE,90 N.C. 647(1884)
THOMAS G. LYTLE v. JOHN LYTLE and others.
Supreme Court of North Carolina
(February Term, 1884.)
Appeal — Justification of Bond.

1. An appeal will be dismissed on motion if the appeal bond is not justified, unless the record shows that the appellee has waived the same in writing.Page 648

2. An affidavit of a surety to such bond is fatally defective if it does not state that the affiant is worth double the amount specified in the bond.
MOTION by plaintiff to dismiss an appeal heard at February Term, 1884, of THE SUPREME COURT.
Mr. W. W. Flemming, for plaintiff.Messrs. Sinclair SinclairandJ. B. Batchelor, for defendants.
MERRIMON, J.
The appellee moved to dismiss the appeal upon the ground that the undertaking upon appeal had not been justified as required by the statute.

It does not appear in the record, or otherwise, that the undertaking, or a deposit of money with the clerk, ordered by the court, waswaivedby a "written consent on the part of the respondent," the plaintiff. An affidavit of the surety accompanies the undertaking upon appeal, but it is fatally defective, in that it does not state that the affiant "is worth double the amount specified therein." The statute is peremptory in requiring this fact to be stated.Harshaw v. McDowell,89 N.C. 181;Morphew v. Tatem, Ib., 183;Hemphill v. Blackwelder, decided at this term,ante, 14.

It is manifest that the appellee is entitled to have his motion allowed. It is so ordered.

Appeal dismissed.