Bailey v. . Rutjes

91 N.C. 420

Opinion

Merrimon, J.

It does not appear by the record or otherwise in writing, that an undertaking upon appeal was waived by the appellant, or that a sum of money in lieu of such undertaking was deposited with the clerk by order of the court. It does appear, however, that an undertaking was given, but it was not properly justified by a surety thereto. He fails to make affidavit in connection therewith, “ that he is worth double the amount specified therein.”

The appellee, for the causes mentioned, moved to dismiss the appeal. It is obvious that he is entitled to have his motion allowed. In the absence of an undertaking duly justified, the appeal has “no effect.” The Code, §560; Harshaw v. McDowell, 89 N. C., 181.

Motion allowed.