{
  "id": 2092712,
  "name": "CLERK'S OFFICE vs. HUFFSTELLER et al.",
  "name_abbreviation": "Clerk's Office v. Huffsteller",
  "decision_date": "1872-06",
  "docket_number": "",
  "first_page": "449",
  "last_page": "452",
  "citations": [
    {
      "type": "official",
      "cite": "67 N.C. 449"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 6006,
    "ocr_confidence": 0.428,
    "pagerank": {
      "raw": 3.3083570932601416e-07,
      "percentile": 0.8723091577925972
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    "sha256": "7d86bde6435af214290bb161af5d9f1c5af97fade8ac37df088f9ddeea3a96ca",
    "simhash": "1:ec0fb2228a0a8c6e",
    "word_count": 1073
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  "last_updated": "2023-07-14T16:32:25.131400+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "CLERK\u2019S OFFICE vs. HUFFSTELLER et al."
    ],
    "opinions": [
      {
        "text": "Pearson, C. J.\nIn the ease, Hagans v. Huffsteller, 65, N. C. 443, there was judgment in favor of Huffsteller, who was the appellant. The rule is against the sureties o\u00ed Huffsteller, to show cause why they shall not pay the costs of Huffsteller in this Court, on the ground that these costs cannot be made either out of Hagans, or Huffsteller. The clerk insists that the sureties of the appellant, under these circumstances, should pay the costs. His reasoning is, that ii the appellant had paid money into office in place o\u00ed the undertaking, the costs would have been retained out of the mon.ey; ergo, the costs should be made good by the sureties. This is a non seguitur; for the money would have been that o\u00ed the appellant; but when he gives the undertaking as required by O. C. P., there is no money in the office, and ii it is made, it must come out of the sureties, which they\u201d insist is more than they bargained for.\u201d\nEither the undertaking is void, or else it must be by implication, a promise made to the appellee.\nIn taking an appeal, under the old mode o\u00ed procedure, a .'bond, with sureties, payable to the adverse gjarty, with condition, &c., was required. The Code of Civil Procedure- substitutes \u201c an undertaking \u201d in the place of a bond, and omits to direct, in express terms, to whom or with whom, the u/ndertaking is to be made. No one has ever suggested to me the reason for making this change, nor have I been able to conceive o\u00ed one, although I am to assume there was some sufficient reason. Justice Rodman, who was o\u00ed the Code Commission, informs us that the idea is borrowed from the procedure in courts of admiralty, where \u201c the libel \u201d being against a thing, the undertaking is \u201c with all whom it may concern.\u201d However this may be, a prosecution bond payable to nobody, and an undertaking for an appeal made with nobody, is a novelty at the common law.\nThis raises the question, in courts proceeding according to the course of the common law, are the prosecution bonds and thp undertaking for appeals void for want of an obligee in the bond, and of a party with whom the undertaking is made in eases of appeal l This rule is so clearly'based on' common sense, that it has become a common saying, \u201c It takes two to make a bargain.\u201d There is no statute which essays to abrogate this rule of the common law, and it may well be doubted whether it does not exceed the power of legislation to enact, that property may be conveyed without a grantee, or that a contract or \u00a3i undertaking\u201d shall be valid when the contract is made with no one.\nSo these \u00a3; undertakings\u201d are-all-of\u2019no legal effect, unless the Court can, by implication, supply a person with whom the undertaking is made, and we have come to the conclusion that there is an implication, that the undertaking is made to the opposite party ; therefore, we take it, that the undertaking on an appeal is made with-the appellee. C. O. P. see. 414, 303 ; \u201cA written undertaking must be executed on the part of the appellant by at least two sureties, to the effect, that the appellant will pay all costs and damages, which may be awarded against him on the appeal, &c.,\u201d \u201c Such undertaking or deposite may be waived by a written consent on the part of the respondent.\u201d In passing,.it may be remarked, this last clause which allows the undertaking to be waived by \u201cthe respondent'' or, as-we termitj appellee,\u201d seems to confirm our conclusion, that the undertaking is supposed to be made with \u201c the respondent,\u201d or appellee.-\nTake it then, that the undertaking is not void, but is made with the appellee, and that the sureties are bound to pay all costs and damages, which may be awarded against the appellant. As judgment was rendered'' in His fayor, no costs or damages have been awarded against'the appellant, and the sureties are not bound to pay. any thing, by the terms- of the undertaking.\nThe bond, given at the issuing of the summons,.secures to-the defendant his costs; no provision is made requiring securety for the plaintiff\u2019s costs. The undertaking given un an appeal secures to the appellee his costs; no provision is made requiring security for the cost of the appellant.\nIn our case we can find no ground, however much disposed to do so, on which we can aid the clerk by fixing on the sureties tor the appeal the costs of the appellant. The appellee may waive an appeal bond. This shows that the appellant is not required to secure his own cost.'\nThe question was mooted at the bar, whether, as the Code makes no provision for taking summary judgments on motion, the party is not put to his civil action, to get judgment on prosecution bonds and undertakings for appeals. So much of the Revise Code, as is not inconsistent with or superseded by the Code of Civil Procedure, is still in force; it follows, that prosecution bonds and \u201c xondertal\u00e1ngs'1'1 for appeals, which are a substitute for appeal bonds, are sent up to this Court as part of the record, and a summary judgment may be taken as was \u25a0done before C. C. P.\nRule discharged. Per .Curiam.",
        "type": "majority",
        "author": "Pearson, C. J."
      }
    ],
    "attorneys": [
      "Bailey and Schenck, for the defendant.",
      "\u25a0W. J\u00a5. H. .Smith, contra."
    ],
    "corrections": "",
    "head_matter": "CLERK\u2019S OFFICE vs. HUFFSTELLER et al.\nAn undertaking on appeal, given under secs. 303 and 414 of C. C. P., though not so expressed, is, by implication, taken to be made with the appellee.\n'Such undertaking secures the costs of the appellee, but not those of the appellant. Therefore, when there was judgment in the Supreme Court in favor of the appellant, his sureties are not liable on their undertaking for his costs, when such cpsts cannot be made out of the appellee, or their principal.\nProsecution bonds, and undertakings on appeal, being sent up as part of the record, summary judment may be taken upon them, as before the adoption of C. C. P.\n[Sagans v. Suffsteller., 65 2ST. C. 443.]\nRule in this Court upon the sureties of an appellant, to show cause why they shall not pay his costs, judgment having been \u25a0rendered here in his favor.\nThe opinion of the Court contains a sufficient statement\nBailey and Schenck, for the defendant.\n\u25a0W. J\u00a5. H. .Smith, contra."
  },
  "file_name": "0449-01",
  "first_page_order": 461,
  "last_page_order": 464
}