1. The court did not formally rule upon the motion to dismiss. His instruction to the jury, however, was equivalent to overruling it. The statute (Penal Code, § 963) does not in terms provide for the direction to officers of a scire facias issued on the forfeiture of a criminal recognizance; but it does provide that if the parties reside out of the coupty or State, scire facias may be served by publication as in cases of scire facias to revive a judgment. By analogy a scire facias on the forfeiture of a criminal recognizance should issue as provided for the issuance of a scire facias on a dormant judgment.' The statute as to dormant judgments provides that the scire facias should be directed to all and singular the sheriffs of this State. Civil Code, § 5976. We think, therefore, that the scire facias was properly directed.
2.The complaint is made that no judgment can be entered up against the bail until the principal has been served or has waived service. No question is made in the record because there was no return of non est inventus as to the principal. The sole point is that as a condition precedent to a judgment against a bail there must be a service of the scire facias upon his principal. The condition of a criminal recognizance is not for the payment of money if the principal fails to pay it, but for the appearance of the principal; in default of such appearance the security binds himself to pay the sum obligated as an original undertaking. The statute is not mandatory that the service shall be by publication, but is permissive. The language is that “the scire facias may be served by publication, as in the cases of scire facias to revive judgment.” *83But we do not understand the statute to mean that a judgment against the bail can not be entered up unless the principal is served by publication or otherwise, as a condition precedent to the entry of judgment on the bond. Indeed the statute provides that if at such return term no sufficient cause be shown to the contrary, judgment, on motion, shall be entered against the' principal and sureties, or such of them as have been served. Penal Code § 962. This is a clear inference that service on others is not a condition precedent to taking a judgment against those that have been served.
3. It appeared from the evidence that the bail, at the time he signed the bond, was a resident of Talbot county, Georgia; but at the time he was served he was living in Lee county. It appeared that he was in Talbot county at the time of service by the sheriff of Talbot county; and the question is whether the service under these conditions is good. The sheriff had authority to serve the writ in that .county; the bail was in that county at the time, and was personally served. ' We know of no reason why such service is not valid. It will be borne in mind that the point made goes to the service, ánd not to the jurisdiction of the court. There is no question that the scire facias against the bail is to be issued from the court of the county in which the indictment was preferred, and not from the court of the county where the bail resided.
4. On the issue as to whether the principal had formally surrendered to the sheriff there was a sharp conflict of evidence. The sheriff testified that there had been a forfeiture of the bond, that the principal had paid the costs on that forfeiture, and that he did not surrender himself into his custody. The jury had a right to take this testimony as true.
Judgment affirmed.
All the Justices concur.
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