{
  "id": 8696430,
  "name": "STATE v. A. L. WAGNER",
  "name_abbreviation": "State v. Wagner",
  "decision_date": "1884-10",
  "docket_number": "",
  "first_page": "521",
  "last_page": "523",
  "citations": [
    {
      "type": "official",
      "cite": "91 N.C. 521"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "cite": "90 N. C., 11",
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    {
      "cite": "85 N. C., 397",
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        11278070
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    {
      "cite": "85 N. C., 393",
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  "analysis": {
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  "last_updated": "2023-07-14T20:07:30.396726+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. A. L. WAGNER."
    ],
    "opinions": [
      {
        "text": "Merrimon, J.\nThe appellee moved to dismiss the appeal upon the ground that the surety to. the undertaking had failed to make affidavit that he was worth double the sum of money therein specified; and it so appeared.\nThe defect is fatal to the appeal, unless there has been a waiver of the undertaking, in writing, on the part of the ap-pellee, or unless a sum of money in lieu of the undertaking was deposited with the clerk by order of the court. The Code, \u00a7\u00a7552, 560; Harshaw v. McDowell, 89 N. C., 181.\nNo such deposit appears to have been made, and we find no such waiver in writing, in or out of the record. At one place in the record we find this writing \u2014 \u201c Bond fixed at $25; bond filed,\u201d but it does not appear that the court saw or approved it. It cannot be presumed that the court saw it, because in the orderly course of business the clerk takes the undertaking; it is not necessary that the court should do so. It must sufficiently appear affirmatively that the court received and approved the undertaking, in- which case the presumption arises that the appellee was present and assented to the entry of approval \u2014 he being in court is presumed to see and assent to such entry, nothing appearing to the contrary. McMillan v. Nye, 90 N. C., 11.\nIn Hancock v. Bramlett, 85 N. C., 393, the entry on the record was \u2014 \u201c bond fixed at $25; filed and approved,,\u201d and this was held a sufficient waiver in writing. There, the Chief Justice said : \u201c The acquiescence of the appellee in its sufficiency must therefore (because the undertaking was accepted in open court) be assumed, and consequently a waiver of his right to make the objection in this court.\u2019\u2019 And the court, in that case, went as far as we feel at liberty to go in upholding the waiver in writing recognized by the statute. \u201cFiled and approved\u201d imply that the court approved the undertaking in open court, and that is very much more than is implied by the words, \u201cbond filed.\u201d\nIn Bryson v. Lucas, 85 N. C., 397, the court held, the undertaking not being justified, that an entry thereon of the words, \u201c the within bond is good,\u201d was not a compliance with the statute prescribing how appeals shall be perfected. There, Mr. Justice Ashe, in distinguishing it from Hancock v. Bramlett, said in respect to the latter case: \u201c In that case the presiding judge in the case on appeal states that the bond fixed at $25 is\u2018filed and approved,\u2019and it was presumed that the bond was taken in open court under the supervision of the judge. But this bond is approved by the clerk, it may be privately, when the appellee had no notice of its being filed or any opportunity to object to its sufficiency.\u201d\nThe purpose of the statute is to protect the appellee in respect to costs. He has a substantial interest in the undertaking, upon appeal, and it cannot be dispensed with without his consent in writing, unless a sum of money be deposited with the clerk by order of the court in lieu of the undertaking. The statute is careful to provide, in strong, peremptory and exacting terms, that the appeal shall be ineffectual for any purpose unless perfected in the way prescribed in it. The language is plain and mandatory, and very little is left to construction. The appellee has the substantial right under the statute to insist upon a substantial compliance with it in all respects. And it is our duty to uphold his right when he demands that we do so in a proper case.\nThe motion to dismiss the appeal must be allowed. It is so \u00f3rdered.\nAppeal dismissed.",
        "type": "majority",
        "author": "Merrimon, J."
      }
    ],
    "attorneys": [
      "Attorney-General, for the State.",
      "No counsel for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. A. L. WAGNER.\nAppeal Bond, insufficiency of.\nAn appeal will be dismissed, on' motion of the appellee, where the surety to the undertaking fails to justify that he is worth double the amount specified therein, unless there he a waiver in writing on the part of the appellee, or unless a sum of money, in lieu of an appeal bond, is deposited with the clerk by order of the presiding judge. Cases in which a waiver will be presumed, reviewed by MerrimoN, J.\n(Harshaw v. McDowell, 89 N. C., 181; McMillan v. Hye, 90 N. C., 11; Hancock v. Bramlett, 85 N. 0., 393; Bryson v. Dimas, lb., 397, cited and approved).\nProceeding in Bastardy heard at Spring Term, 1884, of Watauga Superior Court, before Shipp, J.\nThis proceeding was instituted before a justice of the peace by one Mary L. Tice, upon whose complaint and affidavit, that the defendant was the father of a bastard child begotten upon her, the defendant was arrested, tried and adjudged to be the father of the child, and to pay a certain sum per month for its support. The case was brought to the superior court by a writ of recordari, and the defendant moved to dismiss the proceeding for certain causes \u2014 not material to be stated in order to an understanding of the opinion of this court \u2014 and the motion was refused. Judgment for the plaintiff, from which the defendant appealed. In this court a motion to dismiss the appeal was made upon the grounds stated in the opinion.\nAttorney-General, for the State.\nNo counsel for the defendant."
  },
  "file_name": "0521-01",
  "first_page_order": 535,
  "last_page_order": 537
}