McCanless v. . Reynolds

Mekejmon, J. The appeal in this ease was dismissed at the last term (McCanless v. Reynolds, 90 N. C., 648,) upon the ground, that an undertaking upon appeal had not been filed within the time prescribed by law, and the same had not been waived. The appellant at that term made application by petition for the writ of certiorari, alleging that a proper undertaking had been given, and if not filed within the time prescribed by law, it had been filed by the consent of the appellee’s counsel, and the clerk had mislaid it, or at all events, failed to attach it to and send it up with the transcript of the record as he ought to have done. Thereupon the appeal was re-instated upon the dockef, a diminution of the record was suggested,, and the writ of 'certiorari was awarded.. ,, At the present term, the appellant producedimd filed, the.■undertaking upon appeal given by him after the time within . which he had the right to give the same had elapsed. • The appellee again at the present term moved to dismiss the appeal, because the undertaking upon appeal was not given within the time prescribed by law, and upon the further ground, that the undertaking was signed by but one surety and was not properly justified. The appellant'filed affidavits to the effect that the counsel of the appellee agreed at the time the appeal was taken that the appellant might have time in addition to that allowed by law within which to file the undertaking. The. counsel for the appellee state upon affidavit, that they have no recollection of any such agreement, and that they do not believe that any was made. They, in effect, deny that any agree-ment to extend the time was made. This court has repeatedly said, that it w.ould not' undertake to reconcile conflicting affidavits, or pass upon their *246 weight, in respect to verbal agreements to waive the requirements of the statute in respect to appeals. It is not denied that the undertaking in this case was not filed within the ten days after the appeal was taken. No waiver of the time appears in writing out of or in the record, nor was any sum of money deposited with the clerk in lieu of an undertaking by order of the court. So that, upon this ground, the ap-pellee is entitled to have his motion to dismiss the appeal allowed. Wade v. Newbern, 72 N. C., 498 ; Clarke’s Code, 339. Rut, if the undertaking upon appeal filed were treated as having been filed within the time prescribed by law, it is fatally defective, in that it is not properly justified. The surety fails to say in his affidavit of justification that he is worth double the amount specified in the undertaking. Lytle v. Lytle, 90 N. C., 647. Motion allowed. Appeal dismissed. '