Susan Felton v. . William L. Elliott

66 N.C. 195

Opinion

Pearson, C. J.

The judgment in the Court below is affirmed and the appeal dismissed for three reasons.

I. The summons issued 5th May, 1871, and demands dower under the Act ratified 2d March, 1867, which act is repealed by Act 1868-69, (page 217.) The case cannot fall under the last act concerning dower, for, the husband is still alive,

II. The proceeding is commenced by summons returnable before the Judge in term time, whereas, beiDg a “special proceeding ” for dower, it ought to have been made returnable5 before the Clerk.

III. The appeal is allowed without a prosecution bond, the plaintiff being allowed to su vin forma pauperis. O. C. P. sec. 303. “to render an appeal, effectual for any purpose, a written undertaking must be executed on the part of the appellant, &e.” See Webber vs. Taylor, at this term.

JUDGMENT AFFIRMED. Appeal dismissed.