This case is clearly distinguishable from Green v. Hobgood, 74 N.C. 234. There it did not appear that notice of appeal was communicated to the plaintiff either before or at the trial. Here the notice was given to the plaintiff at or immediately before the trial, by the trial magistrate, who was instructed by the defendant to enter the appeal in case the judgment was against him. When the parties are present at the trial a verbal notice of appeal is sufficient. For the purpose of notice the magistrate was the agent of the defendant, made such by the instructions of the defendant as to the appeal. In all other respects the appeal was perfected as the statute prescribes, except as to the undertaking and in not filing that in due time the defendant has made out a case of excusable neglect. He was misled by the magistrate, who informed him when he proposed to give the undertaking that it was unnecessary.
It is not inexcusable on his part to be thus misled by the judge who
tried the case, and who, in effect, declined to receive the offered undertaking.
Judgment reversed and cause remanded.
PER CURIAM. Reversed.
Cited: S. v. Crouse, 86 N.C. 620; S. v. Johnson, 109 N.C. 854; S. v.Griffis, 117 N.C. 714.
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