40 S.E. 842 | N.C. | 1902
This case was submitted to the judge upon a case agreed, and by consent he was to render his judgment out of term, and the losing party should have ten days thereafter in which to appeal, and notice of appeal was waived. Upon receipt of notice of the judgment, and two days before the judgment was filed in the clerk's office, the appellant gave written notice of appeal, service of which was accepted by (63) the appellee, as appears from the transcript of such notice and acceptance in the record. The appellant filed a justified appeal bond, and has in all other respects perfected his appeal and sent up a complete transcript. The appellee moves to dismiss the appeal because entry thereof does not appear to have been entered on the record by the clerk.
The requirement that the appeal should be entered on the record is to furnish indisputable proof of the fact, and is immaterial when the fact of the appeal having been taken is not denied, and notice of appeal has, in fact, been served in time, or waived. In Simmons v. Allison, 119 N.C. at page 563, it is said: "If the notice of appeal is admitted, or shown to have been given in time, it would avail nothing that the entry was not made at all, for it is only made as record proof. Fore v. R. R.,
It appears from the complaint that the defendant sold, after due advertisement, certain real estate on 30 January, 1888, by virtue of a mortgage executed to him by a married woman to secure her husband's debt; that at said sale the property was bid off by one Ayers, who paid the purchase money, it is alleged, with the money of plaintiff, and that subsequently said Ayers conveyed said realty to her. Subsequently it was held that no title passed by said sale, because the surety had been released by reason of an extension of time, which had been granted by the mortgagee to the principal debtor. Fleming v. Barden,
Action dismissed.
Cited: S. c.,