Crockett v. Lowry

Court of Appeals of North Carolina

Crockett v. Lowry

173 S.E.2d 566, 8 N.C. App. 71, 1970 N.C. App. LEXIS 1487

CourtCourt of Appeals of North Carolina

DecidedMay 6, 1970

DocketNo. 7026DC227

StatusPublished

This text of 173 S.E.2d 566 (Crockett v. Lowry) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crockett v. Lowry, 173 S.E.2d 566, 8 N.C. App. 71, 1970 N.C. App. LEXIS 1487 (N.C. Ct. App. 1970).

Pincite

Opinion

VaughN, J.

The defendant perfected her appeal to the district court when she gave notice of appeal in open court and the same was thereafter [73]*73noted in writing by the magistrate upon the judgment. G.S. 7A-228. Porter v. Cahill, 1 N.C. App. 579, 162 S.E. 2d 128. We find no authority for a magistrate to require an “appeal bond” as a condition precedent to an appeal from a judgment rendered by him.

It should be noted that we are not concerned here with the bond to suspend execution authorized by G.S. 42-34 which was required by the magistrate. Nor does the so-called “appeal bond” purport to be the defense bond required by G.S. 1-111. Such a bond is not an “appeal bond.” It is a bond which could have been required before the defendant was allowed to plead to the complaint. Even in cases coming within the purview of G.S. 1-111, when an answer has been filed without any bond and has remained on file without objection, it would be improper for the trial judge to strike the answer .and render judgment for plaintiff without notice to show cause or without giving the defendant the opportunity to file a defense bond. The requirement that the defendant must execute and file a defense bond may be waived, unless seasonably insisted upon by the plaintiff. Gates v. McDonald, 1 N.C. App. 587, 162 S.E. 2d 143. The judgment dismissing defendant’s appeal is

Reversed.

Mallard, C.J., and MoRRis, J., concur.

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VaughN, J.

The defendant perfected her appeal to the district court when she gave notice of appeal in open court and the same was thereafter [73]*73noted in writing by the magistrate upon the judgment. G.S. 7A-228. Porter v. Cahill, 1 N.C. App. 579, 162 S.E. 2d 128. We find no authority for a magistrate to require an “appeal bond” as a condition precedent to an appeal from a judgment rendered by him.

It should be noted that we are not concerned here with the bond to suspend execution authorized by G.S. 42-34 which was required by the magistrate. Nor does the so-called “appeal bond” purport to be the defense bond required by G.S. 1-111. Such a bond is not an “appeal bond.” It is a bond which could have been required before the defendant was allowed to plead to the complaint. Even in cases coming within the purview of G.S. 1-111, when an answer has been filed without any bond and has remained on file without objection, it would be improper for the trial judge to strike the answer .and render judgment for plaintiff without notice to show cause or without giving the defendant the opportunity to file a defense bond. The requirement that the defendant must execute and file a defense bond may be waived, unless seasonably insisted upon by the plaintiff. Gates v. McDonald, 1 N.C. App. 587, 162 S.E. 2d 143. The judgment dismissing defendant’s appeal is

Reversed.

Mallard, C.J., and MoRRis, J., concur.

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Bluebook (online)

173 S.E.2d 566, 8 N.C. App. 71, 1970 N.C. App. LEXIS 1487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crockett-v-lowry-ncctapp-1970.

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