131 S.E. 567 | N.C. | 1926
From a refusal to dismiss this action, together with several others of a similar character which were consolidated for the purposes of the present motion, the defendants appeal.
The defendants, appearing specially, moved before the clerk to dismiss this action and several others, consolidated for purposes of the present motion, upon the ground that the individual sureties on the plaintiffs' prosecution bonds had not justified before the clerk as required by Rule 2 of the rules of practice in the Superior Courts (
Some question having arisen as to whether the clerk had the power to allow the justifications, after summonses had been issued and complaints filed, "it was agreed by both sides that all that should be decided was whether the clerk had the right to allow such justifications; whether the act was mandatory or not." In accordance with this agreement, the clerk decided that he "had the right to act in the premises and to allow said bonds to be justified" or not, in his discretion, though his discretion has not yet been exercised, and thereupon denied the motion to dismiss, holding that if his authority to decide the question be sustained, he would then require the sureties to justify and overrule the motion to dismiss or deny the plaintiffs the right to have their individual bondsmen justify and sustain the motion to dismiss.
On appeal to the judge of the Superior Court, the clerk's judgment was affirmed and the causes remanded with direction that the clerk proceed to act in the matters. *216
It is clear that this appeal was prematurely taken and must be dismissed. Christian v. R. R.,
Appeal dismissed.