Singer Manufacturing Co. v. . Barrett ( 1886 )

The facts appear in the opinion. The appellee moved to dismiss this appeal, upon the grounds, first, that the undertaking upon appeal was not justified in double the sum of money specified thereon, and, secondly, that the undertaking was not given within ten days next after the term of the court at which the judgment was granted.

The first ground cannot be sustained, because in the case settled upon appeal, it is stated, that "from the judgment, plaintiff appealed, — notice waived. Bond filed," and this is signed by the Judge. The implication from the statement is, nothing appearing to the contrary, that the court accepted the undertaking without objection from the appellee, who, it is presumed, was present in person or by counsel. Such an entry is treated as a sufficient waiver in waiving of (220) a strict and formal justification. Gruber v. Railroad Co.,92 N.C. 1.

And for the like reason, the second ground is without force. It seems that the judgment appealed from, was not entered until after the term, and about the 4th of December, 1885. It must be taken that this was by consent, and the Court by the like consent, allowed the undertaking, without regard to its date or time of filing, it, to be filed.

This case is different from that of State v. Wagner, 91 N.C. 521. In that case, the entry held to the insufficient, was made by the Clerk of the Court. Here the Judge states that the bond was field, and hence the presumption of waiver as to the time.

The motion to dismiss the appeal cannot be allowed. The case must stand for argument upon the merits in its order, at the next term.

Motion denied.