State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_42 > GS_42-34

§ 42‑34.  Undertaking onappeal and order staying execution.

(a)        Upon appeal to thedistrict court, either party may demand that the case be tried at the firstsession of the court after the appeal is docketed, but the presiding judge, inhis discretion, may first try any pending case in which the rights of theparties or the public demand it. If the case has not been previously continuedin district court, the court shall continue the case for an appropriate periodof time if any party initiates discovery or files a motion to allow furtherpleadings pursuant to G.S. 7A‑220 or G.S. 7A‑229, or for summaryjudgment pursuant to Rule 56 of the Rules of Civil Procedure.

(b)        During an appeal todistrict court, it shall be sufficient to stay execution of a judgment forejectment if the defendant appellant pays to the clerk of superior court anyrent in arrears as determined by the magistrate and signs an undertaking thathe or she will pay into the office of the clerk of superior court the amount ofthe tenant's share of the contract rent as it becomes due periodically afterthe judgment was entered and, where applicable, comply with subdivision (c)below. For the sole purpose of determining the amount of rent in arrearspursuant to a judgment for possession pursuant to G.S. 42‑30(iii), themagistrate's determination shall be based upon (i) the available evidencepresented to the magistrate or (ii) the amounts listed on the face of the filedComplaint in Summary Ejectment. Provided however, when the magistrate makes afinding in the record, based on evidence presented in court, that there is anactual dispute as to the amount of rent in arrears that is due and themagistrate specifies the specific amount of rent in arrears in dispute, inorder to stay execution of a judgment for ejectment, the defendant appellantshall not be required to pay to the clerk of superior court the amount of rentin arrears found by the magistrate to be in dispute, even if the magistrate'sjudgment includes this amount in the amount of rent found to be in arrears. Ifa defendant appellant appeared at the hearing before the magistrate and themagistrate found an amount of rent in arrears that was not in dispute, and ifan attorney representing the defendant appellant on appeal to the district courtsigns a pleading stating that there is evidence of an actual dispute as to theamount of rent in arrears, then the defendant appellant shall not be requiredto pay the rent in arrears alleged to be in dispute to stay execution of ajudgment for ejectment pending appeal. Any magistrate, clerk, or district courtjudge shall order stay of execution upon the defendant appellant's paying theundisputed rent in arrears to the clerk and signing the undertaking. If eitherparty disputes the amount of the payment or the due date in the undertaking,the aggrieved party may move for modification of the terms of the undertakingbefore the clerk of superior court or the district court. Upon such motion andupon notice to all interested parties, the clerk or court shall hold a hearingwithin 10 calendar days of the date the motion is filed and determine whatmodifications, if any, are appropriate. No writ of possession or otherexecution of the magistrate's judgment shall take place during the time theaggrieved party's motion for modification is pending before the clerk of court.

(c)        In an ejectmentaction based upon alleged nonpayment of rent where the judgment is entered morethan five working days before the day when the next rent will be due under thelease, the appellant shall make an additional undertaking to stay executionpending appeal. Such additional undertaking shall be the payment of theprorated rent for the days between the day that the judgment was entered andthe next day when the rent will be due under the lease.

(c1)      Notwithstanding theprovisions of subsection (b) of this section, an indigent defendant appellant,as set forth in G.S. 1‑110, who prosecutes his or her appeal as anindigent and who meets the requirement of G.S. 1‑288 shall pay the amountof the contract rent as it becomes periodically due as set forth in subsection(b) of this section, but shall not be required to pay rent in arrears as setforth in subsection (b) of this section in order to stay execution pendingappeal.

(d)        The undertaking bythe appellant and the order staying execution may be substantially in thefollowing form: 

"Stateof North Carolina,

"Countyof _____


vs.                                                              Bondto

"______,Defendant                                   Stay Execution

On Appeal to

District Court

"Now comes the defendantin the above entitled action and respectfully shows the court that judgment forsummary ejectment was entered against the defendant and for the plaintiff onthe ____ day of ____, ____, by the Magistrate. Defendant has appealed thejudgment to the District Court.

"Pursuant to the terms ofthe lease between plaintiff and defendant, defendant is obligated to pay rentin the amount of $____ per ____, due on the____ day of each ____.

"Where the payment ofrent in arrears or an additional undertaking is required by G.S. 42‑34,the defendant hereby tenders $____ to the Court as required.

"Defendant herebyundertakes to pay the periodic rent hereinafter due according to the aforesaidterms of the lease and moves the Court to stay execution on the judgment for summaryejectment until this matter is heard on appeal by the District Court.

"This the __________ day of _________, ____.



"Upon execution of theabove bond, execution on said judgment for summary ejectment is hereby stayeduntil the action is heard on appeal in the District Court. If defendant failsto make any rental payment to the clerk's office within five days of the duedate, upon application of the plaintiff, the stay of execution shall dissolveand the sheriff may dispossess the defendant.

"This the __________ day of _________, ____.


                                                                                            AssistantClerk of Superior Court."

(e)        Upon application ofthe plaintiff, the clerk of superior court shall pay to the plaintiff anyamount of the rental payments paid by the defendant into the clerk's officewhich are not claimed by the defendant in any pleadings.

(f)         If the defendantfails to make a payment within five days of the due date according to theundertaking and order staying execution, the clerk, upon application of theplaintiff, shall issue execution on the judgment for possession.

(g)        When it appears bystipulation executed by all of the parties or by final order of the court thatthe appeal has been resolved, the clerk of court shall disburse any accruedmoneys of the undertaking remaining in the clerk's office according to theterms of the stipulation or order.  (1868‑9, c. 156, s. 25; 1883, c. 316; Code, s.1772; Rev., s. 2008; C.S., s. 2373; 1921, c. 90; Ex. Sess., 1921, c. 17; 1933,c. 154; 1937, c. 294; 1949, c. 1159; 1971, c. 533, s. 8; 1979, c. 820, ss. 1‑6;1998‑125, s. 1; 1999‑456, s. 59; 2005‑423, s. 11; 2009‑279,s. 2.)