North Carolina § 42-34 - Undertaking on appeal and order staying execution.

§ 42-34. Undertaking on appeal and order staying execution.

Upon appeal to the district court, either party may demand that the case be tried at the first session of the court after the appeal is docketed, but the presiding judge, in his discretion, may first try any pending case in which the rights of the parties or the public demand it. If the case has not been previously continued in district court, the court shall continue the case for an appropriate period of time if any party initiates discovery or files a motion to allow further pleadings pursuant to G.S. 7A-220 or G.S. 7A-229, or for summary judgment pursuant to Rule 56 of the Rules of Civil Procedure. During an appeal to district court, it shall be sufficient to stay execution of a judgment for ejectment if the defendant appellant pays to the clerk of superior court any rent in arrears as determined by the magistrate and signs an undertaking that he or she will pay into the office of the clerk of superior court the amount of the tenant's share of the contract rent as it becomes due periodically after the judgment was entered and, where applicable, comply with subdivision (c) below. For the sole purpose of determining the amount of rent in arrears pursuant to a judgment for possession pursuant to G.S. 42-30(iii), the magistrate's determination shall be based upon (i) the available evidence presented to the magistrate or (ii) the amounts listed on the face of the filed Complaint in Summary Ejectment. Provided however, when the magistrate makes a finding in the record, based on evidence presented in court, that there is an actual dispute as to the amount of rent in arrears that is due and the magistrate specifies the specific amount of rent in arrears in dispute, in order to stay execution of a judgment for ejectment, the defendant appellant shall not be required to pay to the clerk of superior court the amount of rent in arrears found by the magistrate to be in dispute, even if the magistrate's judgment includes this amount in the amount of rent found to be in arrears. If a defendant appellant appeared at the hearing before the magistrate and the magistrate found an amount of rent in arrears that was not in dispute, and if an attorney representing the defendant appellant on appeal to the district court signs a pleading stating that there is evidence of an actual dispute as to the amount of rent in arrears, then the defendant appellant shall not be required to pay the rent in arrears alleged to be in dispute to stay execution of a judgment for ejectment pending appeal. Any magistrate, clerk, or district court judge shall order stay of execution upon the defendant appellant's paying the undisputed rent in arrears to the clerk and signing the undertaking. If either party 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 undertaking before the clerk of superior court or the district court. Upon such motion and upon notice to all interested parties, the clerk or court shall hold a hearing within 10 calendar days of the date the motion is filed and determine what modifications, if any, are appropriate. No writ of possession or other execution of the magistrate's judgment shall take place during the time the aggrieved party's motion for modification is pending before the clerk of court. In an ejectment action based upon alleged nonpayment of rent where the judgment is entered more than five business days before the day when the next rent will be due under the lease, the appellant shall make an additional undertaking to stay execution pending appeal. Such additional undertaking shall be the payment of the prorated rent for the days between the day that the judgment was entered and the next day when the rent will be due under the lease. Notwithstanding the provisions 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 an indigent and who meets the requirement of G.S. 1-288 shall pay the amount of 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 set forth in subsection (b) of this section in order to stay execution pending appeal. The undertaking by the appellant and the order staying execution may be substantially in the following form: Upon application of the plaintiff, the clerk of superior court shall pay to the plaintiff any amount of the rental payments paid by the defendant into the clerk's office which are not claimed by the defendant in any pleadings. If the defendant fails to make a payment within five business days of the due date according to the undertaking and order staying execution, the clerk, upon application of the plaintiff, shall issue execution on the judgment for possession. When it appears by stipulation executed by all of the parties or by final order of the court that the appeal has been resolved, the clerk of court shall disburse any accrued moneys of the undertaking remaining in the clerk's office according to the terms of the stipulation or order. "State of North Carolina, "County of __________ "____________, Plaintiff vs. Bond to "____________, Defendant Stay Execution On Appeal to District Court "Now comes the defendant in the above entitled action and respectfully shows the court that judgment for summary ejectment was entered against the defendant and for the plaintiff on the ________ day of ________, ________, by the Magistrate. Defendant has appealed the judgment to the District Court. "Pursuant to the terms of the lease between plaintiff and defendant, defendant is obligated to pay rent in the amount of $________ per ________, due on the ________ day of each ________. "Where the payment of rent in arrears or an additional undertaking is required by G.S. 42-34, the defendant hereby tenders $________ to the Court as required. "Defendant hereby undertakes to pay the periodic rent hereinafter due according to the aforesaid terms of the lease and moves the Court to stay execution on the judgment for summary ejectment until this matter is heard on appeal by the District Court. "This the ________ day of ________, ________. ___________________________________________________________________ Defendant "Upon execution of the above bond, execution on said judgment for summary ejectment is hereby stayed until the action is heard on appeal in the District Court. If defendant fails to make any rental payment to the clerk's office within five business days of the due date, upon application of the plaintiff, the stay of execution shall dissolve and the sheriff may dispossess the defendant. "This ________ day of ________, ________. _______________________________________________________________________ Assistant Clerk of Superior Court." History (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; 2019-243, s. 16.) Local Modification. - Burke: Pub. Loc. 1927, c. 57; Cabarrus, Craven, Davie, Granville, Iredell, Mecklenburg, Swain, Watauga: 1921, c. 90; Ex. Sess., 1921, c. 17. Editor's Note. - Session Laws 1998-125, s. 3 provides that the Administrative Office of the Courts shall amend the Small Claims form entitled "Judgment In Action For Summary Ejectment" to provide for a block in the magistrate's findings to designate in accordance with G.S. 42-34(b) that either there is no actual dispute as to the amount of rent in arrears, or if there is an actual dispute of the amount of rent in arrears, the amount found to be in dispute. Effect of Amendments. - Session Laws 2005-423, s. 11, effective October 1, 2005, in subsection (b), inserted "of the tenant's share" in the first sentence, added the second sentence and inserted "within 10 calendar days of the date the motion is filed" in the last sentence. Session Laws 2009-279, s. 2, effective October 1, 2009, added the last sentence of subsection (b). Session Laws 2019-243, s. 16, effective November 6, 2019, substituted "business" for "working" in subsection (c); and inserted "business" preceding "days of the due date" in the fifth paragraph of the form in subsection (d) and in subsection (f). Legal Periodicals. - For a survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978). For a survey of 1977 law on property, see 56 N.C.L. Rev. 1111 (1978). For a comment on landlords' eviction remedies in the light of Spinks v. Taylor, 303 N.C. 256 , 278 S.E.2d 501 (1981), and the 1981 Act to Clarify Landlord Eviction Remedies in Residential Tenancies, see 60 N.C.L. Rev. 885 (1982). For note discussing preliminary injunctions in employment noncompetition cases in light of A.E.P. Industries, Inc. v. McClure, 308 N.C. 393 , 302 S.E.2d 752 (1983), see 63 N.C.L. Rev. 222 (1984). See legislative survey, 21 Campbell L. Rev. 323 (1999).