Dunn v. Marks
| Decision Date | 24 April 1906 |
| Citation | 141 n. c. 232,53 S.E. 845 |
| Parties | DUNN. v. MARKS. |
| Court | North Carolina Supreme Court |
Revisal 1905, § 512, providing that the judge may, in his discretion, allow an answer or reply to be made, "or other thing to be done, " after the time limited, applies to filing the defense bond required by section 453.
[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, § 418.]
An order extending time to file a defense bond being, under Revisal 1905, § 512, in the discretion of the judge, appeal will not lie therefrom.
Appeal from Superior Court, Lenoir County.
Action by Charles F. Dunn against A. Marks. From an order, plaintiff appeals. Dismissed.
Y. T. Ormond, for appellee.
This is an action of ejectment. At November term, 1905, the first term after service of summons, the defendant filed his answer, but failed to file his defense bond as required by Revisal 1905, § 453. No action was had at that term. At December term the plaintiff moved for judgment for want of a defense bond. The court in its discretion granted 60 days' leave to file such bond. From this order, and the refusal of judgment by default, the plaintiff appealed. This is a motion to dismiss the appeal on the ground that this was a matter of discretion from which no appeal lay.
The plaintiff having made no objection to the failure to file bond, at the term at which the answer was filed, it is questionable if the judge ought to have given judgment at a subsequent term without giving the defendant some opportunity to file bond. McMillan v. Baker, 92 N. C. 110. Whether or not time should have been given to file bond was a matter in the discretion of the judge. Revisal 1905, § 512, provides: "The judge may likewise in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order enlarge such time." This applies to filing the defense bond required by section 453. Taylor v. Pope, 100 N. C. 267, 11 S. E. 257, 19 Am. St. Rep. 530. Extension of time to file a defense bond being a matter in the discretion of the judge, no appeal lay, and the motion to dismiss must be allowed. It is true that in Kruger v. Bank, 123 N. C. 16, 31 S. E. 270, the court held that an appeal lay from the refusal of a judgment by default for want of an answer, to which the plaintiff was entitled; but It added that, if the court below had granted time to file answer, It would have been unreviewable, and no appeal would lay.
When an appeal is taken in a matter wherein no appeal lies, the court below need not stay proceedings, but may disregard the attempted appeal as...
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...matter is in the Supreme Court. State v. Lea, 203 N.C. 316, 166 S.E. 292; Goodman v. Goodman, 201 N.C. 794, 161 S.E. 688; Dunn v. Marks, 141 N.C. 232, 53 S.E. 845; State v. Dewey, 139 N.C. 556, 51 S.E. 937; Guilford County v. Georgia Co., 109 N.C. 310, 13 S.E. 861; Carleton v. Byers, 71 N.C......
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Swan Quarter Farms, Inc. v. Spencer, COA98-740.
...to extend the time for filing a G.S. 1-111 defense bond and to allow filing of the bond after the answer has been filed. Dunn v. Marks, 141 N.C. 232, 53 S.E. 845 (1906). Additionally, "our Supreme Court has held that the requirement [of posting bond] may be waived and has treated the statut......
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...the authority given to Judge Fountain by G.S. § 1-152 to extend the time. White v. Price, 237 N.C. 347, 75 S.E.2d 244; Dunn v. Marks, 141 N.C. 232, 53 S.E. 845; Timber Co. v. Butler, 134 N.C. 50, 45 S.E. 956; Kerr v. Hicks, 131 N.C. 90, 42 S.E. 532; Gilchrist v. Kitchen, 86 N.C. The excepti......
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