Crockett v. Lowry , 8 N.C. App. 71 ( 1970 )

VaughN, J.

The defendant perfected her appeal to the district court when she gave notice of appeal in open court and the same was thereafter noted in writing by the magistrate upon the judgment. G.S. 7A-228. Porter v. Cahill, 1 N.C. App. 579, 162 S.E. 2d 128. We find no authority for a magistrate to require an “appeal bond” as a condition precedent to an appeal from a judgment rendered by him.

It should be noted that we are not concerned here with the bond to suspend execution authorized by G.S. 42-34 which was required by the magistrate. Nor does the so-called “appeal bond” purport to be the defense bond required by G.S. 1-111. Such a bond is not an “appeal bond.” It is a bond which could have been required before the defendant was allowed to plead to the complaint. Even in cases coming within the purview of G.S. 1-111, when an answer has been filed without any bond and has remained on file without objection, it would be improper for the trial judge to strike the answer .and render judgment for plaintiff without notice to show cause or without giving the defendant the opportunity to file a defense bond. The requirement that the defendant must execute and file a defense bond may be waived, unless seasonably insisted upon by the plaintiff. Gates v. McDonald, 1 N.C. App. 587, 162 S.E. 2d 143. The judgment dismissing defendant’s appeal is

Reversed.

Mallard, C.J., and MoRRis, J., concur.