Holly v. . Perry

At the appearance term, the plaintiff having filed his complaint, the defendant moved to dismiss the action upon the ground that the plaintiff had not given an undertaking as required by The Code, Sec. 209, which provides that, "before issuing the summons, the clerk shall require of the plaintiff, either to give an undertaking, with sufficient surety, in the sum of two hundred dollars, with the condition that the same shall be void, if the plaintiff shall pay the defendant all such costs as the defendant shall recover in the action," etc.

The plaintiff insisted that he had given a "bond" on the back, (31) or outside, of the summons, which was a substantial compliance with the statute, whereof the following is a copy:

"We acknowledge ourselves bound unto defendant in this action in the sum of two hundred dollars, to be void, however, if the plaintiff shall pay to the defendant all such costs as the defendant may recover of the plaintiff in this action.

"Witness our hands and seals this ________ day of _____, A.D. 188_. Seal. Seal. (Signed) J. B. MARTIN, Seal."

The Court held that this writing was not a substantial or any compliance with the statute recited above, and gave judgment dismissing the action; whereupon the plaintiff having excepted, appealed to this Court. The clerk ought to have required, and the plaintiff ought to have given, a formal undertaking, as required by the statute. Indeed, it is more orderly, better and safer, in all cases to observe strictly statutory requirements in matters of procedure. A contrary course never fails to result in irregular and confused practice, and is attended in almost every case with more or less hazard to litigants.

The bond written on the summons in this case, is certainly informal, and in some respects not very definite and certain, but taking it in connection with the summons, its purpose as indicated by its terms, and applying it as contemplated by the statute, we think it ought to be treated as in effect a sufficient undertaking. Although in form a bond, the law determines its nature and effect, and treats it as (32) an undertaking under seal. The seal does not defeat its purpose. The clerk and the obligee intended it to be taken with, and as part of the summons, and by reasonable, just and almost necessary implication, the words "defendant" and "plaintiff" employed in it, mean, and were intended to mean, the persons mentioned in the summons by name as such, and as certainly as if they had been mentioned by their names respectively in the body of the bond. The sum of money mentioned in, and the condition of, the bond, are such as the law requires, and it must be treated as a sufficient undertaking.

There is error. Let this opinion be certified to the Superior Court according to law. It is so ordered.

Error. Reversed.

Cited: Comron v. Standland, 103 N.C. 211.