Cooper v. . Warlick

14 S.E. 106, 109 N.C. 672

• Court: Supreme Court of North Carolina
• Decided: September 5, 1891
• Status: Published

Opinion

Clark, J.:

The defendants having pleaded sole seizin could have been required to file a defence bond under section 237 of The Code; Vaughan v. Vincent, 88 N. C., 116, unless they had obtained leave to defend the action without giving the bond. But his Honor properly held that “having accepted the answer and filed it on the day fixed for pleading, and no objection being made by the plaintiff,” it was error in the Cletk to strike out the answer, after it had been on file forty-two days, without notice to the defendants, and to give a summary judgment against them. The case comes within the spirit of the tenor of the decision in McMillan v. Baker, 92 N. C., 110. The Court below committed no error in setting the judgment aside and directing the Clerk to give notice to defendants of a day by which the defence bond must be filed or leave obtained, in the manner required by law, to defend without giving it. It has, in like manner, been held that when the prosecution bond has not been given, but the plaintiff has been permitted to go on and prepare his case for trial, the Court will not, on motion of the defendant, dismiss the action peremptorily for want of the bond, but will permit the plaintiff to prepare and file his bond. Brittain v. Howell, 19 N. C., 107; Russell v. Saunders, 48 N. C., 432; Albertson v. Terry, at this term. Indeed, it appears by defendants’ affidavit, which is not denied, that they were, and are, still ready to file the requisite bond, if required to do so.

Affirmed.