The motion of the defendant now made to dismiss the appeal for defects in the undertaking on appeal sent up with the transcript to the last term of this Court cannot be entertained. That undertaking was to secure the costs of the appeal then attempted to be taken, but this Court held the appeal was not here and remanded the papers. Spence v. Tapscott,92 N.C. 576. If the appeal was not here the case remained in the court below, and if not here, of course no motion to dismiss could be entertained by this Court.
This fully meets and disposes of the objection made by the defendant to the order of Judge Gilmer that the cause was still pending in the Supreme Court upon the appeal first taken, and his Honor had no right, while it was so pending, to make any order in the cause in the court below.
The first bond has been extinguished by its merger in the judgment for costs rendered at the last term of the court, and whether erroneous or not, the judgment stands until it is reversed.
That bond had answered its purpose, and if the transcript had been sent to this Court without another undertaking, there certainly would have been ground for dismissing the appeal for want of an undertaking on the appeal. It was therefore altogether proper and necessary, (252) in order that the appeal might be perfected, that the last undertaking should have been given. It ought to have been given whether it was ordered by the court or not, and error cannot be imputed to his Honor for ordering that to be done which the law required to be done.
There is no error, and the defendant's motion to dismiss the appeal is denied.
No error. Affirmed.
Cited: Mfg. Co. v. Simmons, 97 N.C. 90; Howell v. Jones, 109 N.C. 103.