78 N.C. 76 | N.C. | 1878
On the trial before this justice, the defendant denied that he owed the plaintiff anything. And when the justice give judgment against him, he appealed in open court. This was all that he was obliged to do. It then became the duty of the justice, upon his fees being paid, to send the papers to the clerk of the court, As an excuse for not sending up the papers, the justice said that the defendant told him not to do it. concede that this was sufficient excuse for delay on the part of the justice, still it did not estop the defendant. He hadlocus penitentiae, and he did change his mind and filed with the clerk a good bond to cover the plaintiff's claim and cost. And even when the defendant told the justice that he need not send up the appeal, (77) it was not upon the idea of abandoning his defense, but, as he said, upon the idea that he could defeat the judgment by another way, the homestead; failing in which, he fell back upon his appeal.
We have already said that there was nothing in what the defendant did or said to estop him from prosecuting the appeal. And if there had been some slight irregularity, such as what he said to the justice and his tardiness is not having the justice to send up the papers before the term of the court, if indeed 8 October was after the commencement of the term, yet, as it was manifest from his denying the debt, appealing from the judgment, and giving a good bond, that he never intended to abandon his defense, it was very proper that his Honor should have refused to dismiss the appeal. And even if the defendant had lost his appeal by any technical fault, his Honor might well have had it brought up by recordari.
PER CURIAM. Affirmed.
Cited: Cowell v. Gregory,
(78)
