{
  "id": 11274368,
  "name": "J. H. GREENLEE, Trustee, v. WILLIAM McCELVEY",
  "name_abbreviation": "Greenlee v. McCelvey",
  "decision_date": "1885-02",
  "docket_number": "",
  "first_page": "530",
  "last_page": "531",
  "citations": [
    {
      "type": "official",
      "cite": "92 N.C. 530"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "cite": "89 N. C., 220",
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      "cite": "85 N. C., 393",
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        11278052
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        "/nc/85/0393-01"
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      "cite": "85 N. C., 393",
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  "last_updated": "2023-07-14T20:45:21.083688+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J. H. GREENLEE, Trustee, v. WILLIAM McCELVEY."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\nThe plaintiff\u2019s counsel moved to dismiss the appeal upon the ground that the undertaking to perfect the same has not been justified as required by law.\nThe undertaking bears date on October 2, 1883, which, if the term continued for the full period allowed by law, was on Tuesday of the second week of the session, and it bears the name of the clerk as an attesting witness. A form of justification follows, dated on October 20th, 1884, with the signature of the surety, but without the clerk\u2019s name to the certificate that it was sworn.\nThe preparation of the case, from indulgence of counsel and the delay of the Judge, seems to have been deferred for a year or more, and the record was not docketed in this court until November 14th, 1884, as appears from the clerk\u2019s endorsement, of the time of filing the transcript. As no exception is taken to the hearing of the case on account of the delay, we assume it to have been acquiesced in by the counsel for the appellee, whose motion rests solety on the want of verification of the sufficiency of the surety to the undertaking. In examining the record, we find an entry immediately following the final judgment, in reference to the appeal, in these words : \u201c It is allowed to him upon his giving an appeal boud according to law Avith G. W. Crawford as his surety. Said bond is duly executed and is herewith sent.\u201d\nIn the statement of the case OAmr the signature of the counsel for both parties Avho tried the cause, is contained this paragraph: \u201c The defendant filed the appeal bond in apt time.\u201d\nAs the surety who signed the undertaking was tendered and accepted and the. instrument \u201cduly executed,\u201d and this during the sitting of the court without a verification, it must be understood as a Avaiver in Avriting, and a dispensing Avith the oath, and an admission of the sufficiency of the surety Avithout its support. The present case then falls clearly Avithin the ruling in Hancock v. Bramlett, 85 N. C., 393, and Jones v. Potter, 89 N. C., 220.\nThe motion is denied.",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Messrs. Walter Clark and J. W. Hinsdale, for the plaintiff.",
      "No counsel for the defendant."
    ],
    "corrections": "",
    "head_matter": "J. H. GREENLEE, Trustee, v. WILLIAM McCELVEY.\nUndertaking on Appeal \u2014 Justification\u2014 Waiver.\nWhere the surety to an undertaking on appeal does not justify, but it appears that the surety was tendered and accepted, and the instrument duly executed in open court without objection; field, to be a waiver of the statutory requirement.\n(Hancock v. Bramlett, 85 N. C., 393; Jones v. Potter, 89 N. C., 220, cited and approved).\nMotion by plaintiff to dismiss an appeal from McDowell Superior Court, heard at February Term, 1885, of the Supreme Court.\nMessrs. Walter Clark and J. W. Hinsdale, for the plaintiff.\nNo counsel for the defendant."
  },
  "file_name": "0530-01",
  "first_page_order": 564,
  "last_page_order": 565
}