Lytle v. . Lytle

90 N.C. 647

Opinion

MerrijjoN, J.

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.