Plunkett
v.
Penninger

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of North CarolinaAug 1, 1855
47 N.C. 367 (N.C. 1855)

August Term, 1855.

Where a judgment has been rendered in a County Court upon a ca. sa. bond, the defendant has a right to appeal to the Superior Court, and the case will be considered de novo in that court.

APPEAL from the Superior Court of Cabarrus, at the Spring Term, 1855, his Honor, Judge MANLY, presiding.

V. C. Barringer, for the plaintiff.

H.C. Jones, for the defendant.


A capias ad satisfaciendum, with a bond for the appearance of the defendant, were returned into the County Court of Cabarrus, whereupon an issue of fraud was made up, and tried by a jury on Tuesday of the term, which issue was found in favor of the defendant. On a subsequent day the defendant was called, and failing to appear, on motion of plaintiff's counsel, a judgment for the debt and costs was rendered against him and his sureties. Afterwards, on Saturday of that term, the defendant appeared in open court, and moved to be permitted to take the oath for the relief of insolvent debtors, also, that the judgment theretofore rendered, be set aside; both which motions were refused by the court, whereupon the defendant appealed to the Superior Court.

In the Superior Court the judgment below was reversed and a procedendo ordered to issue, from which judgment the plaintiff appealed to this Court.


After the judgment was rendered against him in the County Court, the defendant had an undoubted right to appeal from it at any time during the same term. Rev. Stat. ch. 4, sec. 1. That right was not at all affected by the attempt of the defendant to have it vacated in the County Court. The effect of the appeal was to vacate the judgment in the County Court, and to constitute the cause as it stood in that Court to be disposed of de novo in the Superior Court. In the judgment of the latter Court we cannot discover any error. After the issues of fraud were found in his favor, the defendant had a right to be allowed to take the oath for the relief of insolvent debtors and to be then discharged, and in the order of the Superior Court to that effect, there is no error. This opinion will be certified, to the end that the Superior Court may proceed to enforce its judgment.

PER CURIAM. Judgment affirmed.