State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1 > GS_1-289

§ 1‑289.  Undertaking tostay execution on money judgment.

(a)        If the appeal isfrom a judgment directing the payment of money, it does not stay the executionof the judgment unless a written undertaking is executed on the part of theappellant, by one or more sureties, to the effect that if the judgment appealedfrom, or any part thereof, is affirmed, or the appeal is dismissed, theappellant will pay the amount directed to be paid by the judgment, or the partof such amount as to which the judgment shall be affirmed, if affirmed only inpart, and all damages which shall be awarded against the appellant upon theappeal, except as provided in subsection (b) of this section. Whenever it issatisfactorily made to appear to the court that since the execution of theundertaking the sureties have become insolvent, the court may, by rule ororder, require the appellant to execute, file and serve a new undertaking, asabove. In case of neglect to execute such undertaking within twenty days afterthe service of a copy of the rule or order requiring it, the appeal may, onmotion to the court, be dismissed with costs. Whenever it is necessary for aparty to an action or proceeding to give a bond or an undertaking with suretyor sureties, he may, in lieu thereof, deposit with the officer into court moneyto the amount of the bond or undertaking to be given. The court in which theaction or proceeding is pending may direct what disposition shall be made ofsuch money pending the action or proceeding. In a case where, by this section,the money is to be deposited with an officer, a judge of the court, upon theapplication of either party, may, at any time before the deposit is made, orderthe money deposited in court instead of with the officer; and a deposit madepursuant to such order is of the same effect as if made with the officer. Theperfecting of an appeal by giving the undertaking mentioned in this sectionstays proceedings in the court below upon the judgment appealed from; exceptwhen the sale of perishable property is directed, the court below may order theproperty to be sold and the proceeds thereof to be deposited or invested, toabide the judgment of the appellate court.

(b)        If the appellee ina civil action brought under any legal theory obtains a judgment directing thepayment or expenditure of money in the amount of twenty five million dollars($25,000,000) or more, and the appellant seeks a stay of execution of thejudgment within the period of time during which the appellant has the right topursue appellate review, including discretionary review and certiorari, theamount of the undertaking that the appellant is required to execute to stayexecution of the judgment during the entire period of the appeal shall betwenty five million dollars ($25,000,000).

(c)        If the appelleeproves by a preponderance of the evidence that the appellant for whom theundertaking has been limited under subsection (b) of this section is, for thepurpose of evading the judgment, (i) dissipating its assets, (ii) secreting itsassets, or (iii) diverting its assets outside the jurisdiction of the courts ofNorth Carolina or the federal courts of the United States other than in theordinary course of business, then the limitation in subsection (b) of thissection shall not apply and the appellant shall be required to make anundertaking in the full amount otherwise required by this section. (C.C.P., ss. 304, 311; Code,s. 554; Rev., s. 598; C.S., s. 650; 2000, Ex. Sess., c. 1, s. 2; 2003‑19,s. 3.)