Massenburg v. Fogg

Per Curiam. Plaintiff has not excepted to the court’s finding that the appeal was docketed in the office of the clerk of the Superior Court in a proper manner. We interpret that finding to mean the appeal was docketed at the next term of the Superior Court after the justice of the peace rendered his judgment. The court did not need to hear evidence to establish that fact. The J. P. was required to certify the original papers to the Superior Court. G.S. 42-37. In hearing the motion, it is to be assumed the court had before it all of the original papers and the docket entries made by the clerk of the Superior Court showing when the papers were filed in the Superior Court. It was not necessary to offer these papers or the docket entries in evidence to establish the date when they were filed and docketed by the clerk. The court could take judicial notice of the entries showing when the appeal was docketed in the Superior Court. Harrell v. Lumber Co., 172 N.C. 827, 90 S.E. 148. The court could take judicial knowledge of the date the first court convened after 11 May. Defendant was not required, as a condition to his right to appeal to the Superior Court, to give a supersedeas bond. The failure to give such bond did not prevent plaintiff from having execution issue on the judgment. G.S. 7-178. G.S. 1-285 has no application to appeals from a justice of the peace to the Superior Court. The court correctly concluded that defendant was not required to give the bond prescribed by that statute in order to perfect his appeal from the justice of the peace to the Superior Court. Affirmed.