53 S.E. 845 | N.C. | 1906
This is an action of ejectment. At November Term, 1905, the first term after service of summons, the defendant filed his answer, but failed to file his defense bond as required by Rev., sec. 453. No action was had at that term. At December Term the plaintiff moved for judgment for want of a defense bond. The court in its discretion granted sixty days leave to file such bond. From this order and the refusal of judgment by default, the plaintiff appealed. This is a motion to dismiss the appeal on the ground that this was a matter of discretion, from which no appeal lay.
The plaintiff, having made no objection to the failure to file bond at the term at which the answer was filed, it is questionable if the judge ought to have given judgment at a subsequent term without (233) giving the defendant some opportunity to file bond. McMillan v.Baker,
Extension of time to file a defense bond being a matter in the discretion of the judge, no appeal lay, and the motion to dismiss must be allowed. It is true that in Kruger v. Bank,
When an appeal is taken in a matter wherein no appeal lies, the court below need not stay proceedings, but may disregard the attempted appeal, as was done properly by the court below in S. v. Dewey,
Though this cause was docketed too late to be heard on the call of the district to which it belongs, we have entertained this motion to dismiss, after due notice to appellant, that the trial of the cause below may not be delayed by an invalid appeal.
Appeal dismissed.