Opinion
(February Term, 1884.)
Appeal — Justification of Bond.
1. An appeal will be dismissed on motion if the appeal bond is not justified, unless the record shows that the appellee has waived the same in writing.
2. An affidavit of a surety to such bond is fatally defective if it does not state that the affiant is worth double the amount specified in the bond.
MOTION by plaintiff to dismiss an appeal heard at February Term, 1884, of THE SUPREME COURT.
Mr. W. W. Flemming, for plaintiff.
Messrs. Sinclair Sinclair and J. B. Batchelor, for defendants.
The appellee moved to dismiss the appeal upon the ground that the undertaking upon appeal had not been justified as required by the statute.
It does not appear in the record, or otherwise, that the undertaking, or a deposit of money with the clerk, ordered by the court, was waived by a "written consent on the part of the respondent," the plaintiff. An affidavit of the surety accompanies the undertaking upon appeal, but it is fatally defective, in that it does not state that the affiant "is worth double the amount specified therein." The statute is peremptory in requiring this fact to be stated. Harshaw v. McDowell, 89 N.C. 181; Morphew v. Tatem, Ib., 183; Hemphill v. Blackwelder, decided at this term, ante, 14.
It is manifest that the appellee is entitled to have his motion allowed. It is so ordered.
Appeal dismissed.