| N.C. | Dec 5, 1843
Ejectment commenced in the county court of New Hanover. At September Term, 1839, of that court, the plaintiff was nonsuited, and an appeal was taken to the Superior Court, upon which the lessors of the plaintiff executed and filed what was intended to be an appeal bond, but what was in fact a nullity. At Spring Term, 1840, of New Hanover Superior Court the cause was placed on the docket for trial, when the defendant filed an affidavit and obtained an order for its removal to the Superior Court of Bladen for trial. It was placed on the trial docket of this last court at the Fall Term, 1840, and was continued by consent of parties at that and the two succeeding terms. At the Spring and Fall Terms, 1842, it was continued to give the lessors of the plaintiff an affidavit for the absence of witnesses. At Spring Term, 1843, the defendant moved the court to dismiss the appeal for the want of an appeal bond, which motion was continued to give the lessors of the plaintiff an opportunity to procure the bond, which they alleged that they had executed and filed, but which had not been sent with the other papers in the cause on its removal to Bladen. At Fall Term, 1843, the plaintiff's lessors produced the bond, which the defendant contended was a nullity, and he insisted on his motion to dismiss. The court held that the paper produced was entirely ineffectual as an appeal bond, and that if the motion had been made at a proper time, it ought to have been granted, but that after the cause had been removed at the instance and upon the affidavit of the defendant, and had been continued for several terms, the motion came too late and could not be allowed. It was accordingly overruled, and the defendant, by permission of the court, appealed. That the lessors of the plaintiff intended to prosecute their appeal there can be no doubt, as they executed and left in the clerks' office an instrument which they considered an appeal bond. (47) The bond is given by law for the benefit of the appellee. It is not essential that there should be an appeal bond in the transcript to give the appellate court jurisdiction, for the bond may be waived by the appellee, either expressly or impliedly; and whenever the appellate court sees that the appeal bond is waived, it will always proceed with the trial of the cause. The bond in this case could only be to secure to the defendant his costs if he should succeed in the Superior Court. If the defendant had moved the court to dismiss the appeal at the first term, the lessors of the plaintiff might have suggested a diminution of the record and obtained a certiorari, when, on its return, the court would have seen that the instrument intended for an appeal bond was defective as such by the misprision of the clerk and would have put the lessors of the plaintiff under terms to have put in a proper prosecution bond to secure the defendant in his costs before they should have been permitted to proceed. But the defendant did not take this course. He at the first term of the Superior Court of New Hanover filed an affidavit and obtained an order of court to remove the cause to Bladen for trial; the cause stood for trial three years in the Superior Court before this motion was made to dismiss for the want of an appeal bond. Taking all the circumstances together, we think that the judge came to the right conclusion that the defendant had impliedly waived the appeal bond.
PER CURIAM. Affirmed.
Cited: Arrington v. Smith, post, 60; McDowell v. Bradley,
(48)